' MRS. SYEDA TAHIRA SAFDAR, J.---Through instant petition the petitioner Mohiuddin assailed order dated 14th April 2011 of Sessions Judge, Quetta, whereby the trial court while entertaining a complaint made under sections 3, 4, 5 of the Illegal Dispossession Act, 2005 (Act 2005), allowed interim application, and restored the possession of the premises to the complainant/respondent No,1, while exercising powers under section 7(4) of the Act, 2005. It was contended that the trial court failed to consider that the property in question was purchased by the petitioner, and his partner Imran Khan after payment of sale consideration, and got the possession through due course. It was further contended that respondent No,1 was not in possession of the house in dispute, nor any one was dispossessed from the premises by him (petitioner). Furthermore, the respondent No,2 Wali Jan, being the attorney of the seller, entered into sale agreement with him on behalf of the original owners. The petitioner further contended that despite existence of these facts the trial court made an order in their absence, which was neither legal, nor just. Furthermore, the trial court did not collect any evidence about forcible dispossession of respondent No,1 complainant from the premises in question, rather, only relying on the report submitted by S.H.O.
Police Station Civil Lines, Quetta, allowed the application, which is in contravention of law. It was further his contention that the disputed house situated within the jurisdiction of Police Station Industrial Area, but the report was submitted by S.H.O. Police Station Civil Lines, Quetta, which has no jurisdiction in the area nor the report submitted by him can be relied upon, the trial court made an error while relying on it. It has been prayed that the order dated 14th April, 2011 be set aside, and the application filed under section 7 of the Act, 2005 be dismissed.
2. The learned counsel for the parties were heard, and record was perused. While arguing the matter the learned counsel for the petitioner was of the view that he was condemned unheard, as no notice was served on either of the respondents. Further the report was filed by S.H.O. Police Station Civil Lines, Quetta, who was not the relevant person; rather report was to be called from Police Station Industrial Area, in whose jurisdiction the premises in question located. It was further his contention that the impugned order was made before commencement of the trial, thus an illegal order. While replying to the arguments the learned counsel for respondent No,1 was of the view that the respondent No,1 was owner, and occupier of the premises in question. It was further his contention that the premises in question is legally owned by him, and the remaining legal heirs of Mst. Aqeela Sultana, the actual owner. It was his argument that the complaint has not yet been decided finally, while tentative order has been made- by the trial court, therefore, the only question before this court is that who was in possession of the property in question. The learned counsel for respondent No,2 contended that he (respondent No,2) sold the property to the petitioner being attorney of the previous owners, while the keys were handed over to him, who after opening the lock handed over the possession to the petitioner, therefore, no case was made out under provisions of the Illegal Dispossession Act, 2005. The learned State counsel fully supported the order of the trial court. According to him there is no illegality in the order.
3. The perusal of the impugned order reveals that the trial court while concluding the matter arrived to the conclusion that the report submitted by S.H.O. Supports the version of the complainant, and there is history of breaking of locks of the complainant's house, being illegally occupied by the respondents, (respondent No,2" and the A petitioner). With further observation that the respondents, i.e, present petitioner and respondent No,2 have failed to produce any documentary evidence in respect of ownership of the house in question; therefore, an order was made for restoration of possession in favour of the complainant/present respondent No 1.
According to the complaint filed by respondent No,1 Muhammad hill ltar Siddique it appears that the complainant claimed himself to be one of the legal heirs of Syed Aqeela Sultana, in whose name the property was allotted on 23rd August 1961, by the concerned authorities. The respondent No,1 claimed to be in possession of the house in question, bearing khasra No,45, measuring 3109 square feet, situated at Ram Bagh Street, Zarghoon Road, Quetta, since time .Of allotment. It was contention of the respondent No,1/complainant that he was out of station when locks were broken, and respondents Nos.1 and 2 illegally occupied the premises in question without any right, and title.
It is to be noted that several documents were annexed with the instant petition, while several documents were filed by the respondent No,1 thereafter. All these documents disclose that they bear address of respondent No,1 as House bearing Municipal No,9-14/ 111-112, Ram. Bagh Street, Zarghoon Road, Quetta, the house in dispute c in present case. The petitioner claimed to be bona fide purchaser of the house in question, and on basis of it claimed his title, and possession to be legal. He annexed certain mutation entries, whereby the property bearing khasra No,15, measuring 3109 square feet was transferred in his name on 29th July, 2010. The additional documents placed on record by the respondent No,1 reveal that civil litigation is pending between legal heirs of Qazi Muhammad Ibrahim, wherein the respondent No,1, along with remaining legal heirs of Mst. Ageela Sultana were party to the suits. C The litigation pertains to some property, which also include khasra No,45, on which the disputed house is. Situated. Apart from title of the property, which is to be determined by the competent court, the only fact which tentatively appeared from these documents that the respondent No,1 was in possession of the premises in question. But the fact that whether he was dispossessed illegally or forcibly is yet to be established during course of trial.
The matter in hand is that whether respondent No,
1. Is entitled for the relief as provided in section 7 of the Act, 2005, which reads as under:-- "(7) Eviction and mode of recovery as an interim relief.---(1) If during trial the court is satisfied that a person is found prima facie to be not in lawful possession, the court shall as an interim relief direct him to put the owner or occupier, as the case may be, in possession.
(2) Where the person against whom any such order is passed under subsection (1) fails to comply with the same, the court shall, notwithstanding any other law for the time being in force, take such steps and pass such orders as may be necessary to put the owner or occupier in possession.
(3) The court may authorize any official or officer to take possession for securing compliance with its orders under subsection (1) the person so authorized may use or cause to be used such force as may be necessary.
(4) If any person; authorized by the court, under subsection (3), requires police assistance in the exercise of his power under this Act he may send a requisition to bffice-in-charge of a police station who shall on such requisition render such assistance as may be required.
(5) The failure of the officer-in-charge of police station to tender assistance under subsection (4) shall amount to misconduct for which the court may direct departmental action against him."
' Keeping in view this provision the relief provided therein can only be granted in favour of a person "if during trial the court is satisfied that a person is found prima facie to be noted in lawful possession." 'In present case the petitioner is claiming his right being of a bona fide purchaser, and claim his possession thereof. Though there is denial of the fact on the his possession thereof.
Though there is denial of the fact on the part of the complainant/respondent No,1, but these facts are to be determined by the trial court on concluding the trial. As far as, restoration of possession during course of trial is concerned, it is the issue in hand. It is observed that the trial court exercised powers under section 7 of the Act, 2005 without initiation of the trial, even without notice to the petitioner, or remaining respondents, and without affording them any opportunity of being heard In present case admittedly the D petitioner is in possession of the premises in question, thus in the circumstances have a right to be heard, before making an order for his dispossession. Furthermore, it is observed that in the complaint S.H.O., Police Station Industrial Area, Quetta was arrayed as respondent No,3, being the concerned Police Station. But the trial court called report from S.H.O.
Police Station Civil Lines, Quetta, and also made reliance thereon, while passing the order for restoration of possession, but the record is silent that why report was called from a Police Station other E than the mentioned in the complaint. The trial Court has made an error while acting as such, and ignored the requirement of law, which is not proper. Therefore, in the circumstances, no reliance can be made on this Report.
4. In view of the above discussion, the order of restoration of possession made by the trial Court is in contravention of relevant provision of law, thus not sustainable. The instant petition is hereby accepted. Impugned order dated 14th April, 2011 of Sessions Judge, Quetta, is hereby set aside. The trial Court is directed to proceed with the matter strictly in accordance with law, and conclude the proceedings within two months from receipt of this order.