The petitioner has preferred instant writ petition for quashing of proceedings u/S. 561-A of Cr.P.C. conducted by the learned ASJ, Alipur upon application filed by Respondent No. 3 wherein he stated that he is owner of the land measuring 12 Kanals in Khata No. 47 situated in Dakhli Mauza Beti Sillanwali. He had cultivated wheat crop in the said land and paid Rs. 40,000/- -to Nazar Hussain Patwari to incorporate his name as cultivator but now he is demanding further amount of Rs.
30,000/-. On 24.04.2009 Respondents No. 2 to 8 of that application while armed with fire-arms came there and took possession of 08 Kanals owned by the petitioner. They also harvest the wheat crop and put the same to cattle while the remaining wheat crop was thrown away and the land has been ploughed and irrigated. Said application was presented before the learned ASJ on 28.04.2009, who summoned the report of SHO police station concerned for following day. On the said date report was not submitted by the SHO and the matter was adjourned to 30.04.2009. The learned Court also deleted his designation as Justice of Peace mentioning the fact that it was inadvertently written by the Reader and thereafter recorded statement of Respondent No. 3 while converting that application' into private complaint u/S. 3 of Illegal Dispossession Act. Thereafter, on 12.10.2009, he framed the formal charge against the accused.
2. Learned counsel for the petitioner contends that during the proceedings the SHO concerned submitted comments before the learned Court that it is a joint property having been purchased by both the parties from the same owner and every co-sharer is in possession of his respective share in the disputed land. It is next contended that the learned Court committed illegality by converting the application into private complaint, which falls under the special law for which specific procedure is provided. Both the parties are co-sharers and it is settled principle of law that each co-sharer is supposed to be owner in possession of each and every inch of the land. He referred the order dated 17.11:2009 passed by the learned trial Court wherein he directed the Tehsildar Alipur to conduct the partition proceedings of the said Khata as per shares of the parties and submit his report in the Court. An application for partition of joint land was filed as per direction of the learned trial Court on 12.11.2009 and Respondent No. 3 also joined the proceedings before Tehsildar who finally partitioned the land as per share of the parties, which is also being challenged by Respondent No. 3 before DO(R) Muzaffargarh. Further contends that no offence u/S. 3 of Illegal Dispossession Act is made out against the petitioner. Reliance has been placed upon 2007 PCr. LJ 1347, 2008 YLR 462, 2007 PCr. LJ 297 and 2007 SCMR 1884.
3. On the other hand learned counsel for the Respondent No. 3 has vehemently opposed the contentions raised by learned counsel for the petitioner with the submissions that the application was filed by Respondent No. 3 before learned trial Court in person and being illiterate person he could not mention the relevant provisions of law. The learned trial Court rightly converted the application of Respondent No. 3 into private complaint. From bare reading of contents of the application as well as cursory- evidence of complainant/Respondent No. 3 offence u/S. 3 of Illegal Dispossession Act is made out. Although property has been partitioned by the revenue officer but that too after the filing of application so the petitioner cannot take benefit of it. Reliance is placed on PLD 2009 Karachi 17 and PLD 2009 Lahore 220.
4. Arguments heard. Record perused.
5. Admittedly, both the parties purchased the land of joint Khata from the same owner. It is also admitted by both the parties that they purchased un-partitioned land. Even no one raised plea of family partition. However, it was subsequently partitioned by the order of learned trial Court and at present the partition proceedings are presently impugned before the appellate Court of revenue department. This fact has also been verified by the learned counsel Jur Respondent No. 3. It is true that Illegal Dispossession Act, 2005 is a special enactment, which has been promulgated to discourage the land grabbers and to protect the rights of owners and lawful occupants of the property, as against the illegal and un-authorized occupants but there is a distinction between the strangers and co-sharers. If a person has no nexus with the property either as occupant or the owner and still occupies any property or its portion he would be considered as stranger and illegal occupant. Now coming to the other angle that if a co-sharer of the joint Khata occupies some portion of un-partitioned land, whether this act can be considered as illegal occupation, the answer would be in negative. The only question, which remains in field would be the occupation of some portion of precious land from the joint property or possession in excess of his share. It can always be the desire of every co- sharer to occupy the most precious land, however, the proper forum to redress the grievance of all the co-sharers would be the partition of said property through revenue department so the learned trial Court rightly directed the parties to get partitioned the disputed land. The report of SHO clearly mentioned the land in dispute as joint and un-partitioned.
6. Keeping in view the above discussion, I, hereby, order to quash the proceedings u/S. 3 of Illegal Dispossession Act 2005. However, the learned ASJ is directed to look into the other allegations levelled in the application submitted by the Respondent No. 3 and if any cognizable offence is made out, act strictly in accordance with law.
7. Disposed of accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.