' IRFAN SAADAT KHAN, J.---This Criminal Revision Application has been filed against the order passed by 6th Additional Sessions Judge Hyderabad vide order April 12th, 2011.
2. Briefly stated the facts of the case are that a complaint was filed under sections 3/4 of the Illegal Dispossession Act, 2005, whereby mentioning that the applicant is exclusive owner and lawful occupier of agricultural land measuring 3-10 acres out of 7-19 acres being 20 Paisa share in R.S. Nos.31711, 378/1, 2, 383, 381/1, 382/1, 382/2, 383/1, 383/3, 383/4 situated in Deh Dhandh Shah Tapo-A Khokhar Taluka and District Tando Allahyar. The respondent No.1 is stated to be the lessee of the adjoining agricultural land from October, 2010 and has no right and interest in the land of the applicant. That on 30-12-2010 the respondent No.1 forcibly entered the property of the applicant and occupied his property in presence of two witnesses namely Vikio Khan and Baboo and thereafter dispossessed the applicant from his land. Thereafter report was required from the police.
That the police called upon the applicant and other persons and filed report that the applicant is not in possession of the said land since 2006 and that the said land was sold by one Saleem Nahyoon to Allah Ditto Lashari and the same is mutated in the name of the applicant. According to the police, the respondent and his witnesses produced documents in support of their version after that the report was given in his favour. The matter then was referred to the 6th Additional Sessions Judge Hyderabad, who dismissed the complaint filed by the applicant thereafter present Criminal Revision Application has been filed.
3. The counsel for the applicant submits that the order passed by the learned Judge is based upon misconception of law and factual aspects of the case have not been considered in their true perspective. He states that the applicant is the lawful owner of the said property through registered sale-deed dated 17-9-2009. He further states that name of the Applicant is appearing in the record of rights since 24-12-2010. He states that from the lease deed it is clear that Survey No.383/3, admeasuring 3 acres and 10 Ghuntas, has not been given to the respondent No.1 and the respondent cannot claim any ownership right in respect of the said land. He also states that the respondent is the lessee of the adjoining land for nine and half years only from October, 2010 to April, 2020. He states that respondent has no legal and lawful authority to occupy the land of the applicant bearing S.No.383/3. He thereafter stated that a perusal of the statement recorded by the police, which is annexed at Page-159 of the file, clearly shows that the signatures appearing on the said statement of Saleem are totally different from his as available at Page-89 of the file and on his CNIC. He Stated that the alleged statement of Saleem recorded by the Police is false and fabricated. He states that the learned Judge has based his case entirely upon the said statement recorded by the police of Saleem and dismissed the complaint filed by the applicant whereas perusal of the said complaint clearly reveals that the said statement of Saleem is bearing his forged signatures. He therefore, submits that the order dismissing the complaint by the learned Judge be set aside and the matter be decided in his favour.
4. Syed Tariq Ahmed Shah counsel for the respondent No.1 on the other hand stated that the sale- deed was executed between Saleem and his client clearly shows that the land bearing S.No,383/3 measuring 3 acres 10 ghuntas has been given on lease to the respondent for cultivation purposes hence it is the respondent who is legal and lawful owner of the said land till the expiry of the said lease. He further submitted that Saleem was not the exclusive owner of the property and he was owner of 20 paisas only which comes to 7 acres and 10 ghuntas. He states that Saleem has sold three acres and ten ghuntas to the applicant in 2009 whereas he is in occupation of the land since 2006. He states that when the applicant is not the owner of the land how can he claim ownership rights of the said land hence the present Criminal Revision Application (Cr.R.A) is misconceived and is liable to be dismissed. He further stated that while filing the said Cr.R.A the parameters of sections 220 and 223 Cr.P.C. Have not been fulfilled. He stated that when Saleem (Seller) has admitted that he has given the land to the respondent No.1 on lease in 2006, the present claim of the applicant is uncalled for. He further submitted that section 5 of the Illegal Dispossession Act, 2005 clearly states the manner in which the investigation has to be conducted and the present investigation in the case has been made in accordance with the said law, hence no grievance is caused to the applicant. He further submitted that the respondent No.1 is in possession of the said property since 2006 hence no question of occupying the land in 2010 arises. He states that the applicant has failed to prove his ownership. He further stated that ,even if assuming that in the report submitted by the police forged signature of Saleem has been obtained but the question is whether any affidavit of Saleem has been obtained in this regard by the applicant and whether Saleem has denied his signature. He further stated that even otherwise plea of false signature has not been taken earlier hence this plea at this later stage is not available to the applicant. He stated that if the applicant is of the view that the investigation has not been made in a proper manner whether any application for transfer of investigation was moved or not, which also proves that the investigation in the case was fair and transparent. In the end he submits that the application being meritless is liable to be dismissed.
5. Additional Prosecutor-General Sindh on the other hand has supported the version of the applicant and stated that S.No.383/3 is not granted to the respondent which fact is evident from the record, hence claim of the applicant that the land bearing S.No.383/3 has not been given to the respondent has been proved. He further stated that when the land has not been given to the respondent the possession of the land surely comes under the ambit of Illegal Dispossession hence the claim of the applicant so far as the illegal dispossession is concerned, in his view, appears to be correct. He further submitted that since divergent views regarding ownership of the land have been raised, which factual controversy could not be resolved at this stage, the case may be remanded for fresh adjudication by the trial Court.
6. The counsel for the respondent No.1 in his rebuttal has stated that in the statement of Saleem land bearing S.No.383/3 has clearly been mentioned hence the stand taken by the applicant as well as Additional Prosecutor-General Sindh are incorrect. He reiterates that the respondent is in possession of the land since 2006 whereas the land has been sold in 2009 hence the claim of the respondent is correct.
7. I have heard all the learned counsel at considerable length and 'have also perused the record and the law referred to in this regard.
8. Perusal of the lease agreement dated 5-4-2010 entered between Saleem and the respondent reveals that a portion of the land belonging to the brothers and sisters of Saleem has been given to the respondent on lease for 9 1/2 years for cultivation purposes which period is to expire in 2020.
However, it is noted from the said lease agreement that the land bearing S.No.383/3 has not been mentioned in the said lease agreement meaning thereby the same was not part and parcel of the said lease agreement. Perusal of the sale-deed entered between Saleem and the present applicant shows that land bearing S.No.383/3 measuring 3-10 acres was sold by Saleem on 17th September, 2009 to the applicant. There is no denial to the fact that the statement recorded by the police that the land measuring 3-10 acres was purchased by the applicant from Saleem in the year 2009 and the said applicant thereafter started cultivating on the said land however, thereafter Muhammad Ishaque Pathan, the respondent, forcibly occupied the same. The stance of the applicant as appearing from the present application is that since he has purchased the. Said land from Saleem if is he who is the lawful and legal owner of the same and on which he is cultivating the crops, which has illegally and forcibly been taken over by the Respondent whereas the stance of the respondent is that he is occupying the land since 2006 hence he alone is liable to cultivate the same.
9. It is noted from the record that police has recorded the statements of Saleem and others supporting the version of the respondent No.1 and the applicant has also produced two witnesses in support of his stance supporting his view but no document has been produced regarding the fact that the respondent No.1 is in the occupation and that the land is in possession of the respondent No.1 since 2006. Even if for argument's sake it is admitted that the respondent No.1 is enjoying the possession of the land since 2006 and the new agreement entered between Saleem and the respondent No.1 took place in 2010 whereas the said land has been sold to the Applicant No.1 in the year 2009 which is prior to 2010. It is also noted from the record that in the lease agreement entered between Saleem and respondent No.1 it is evident that the said lease-started from the year 2010 for a term 9-1/2 years, which would end in 2020. This also is an undeniable fact that the lease agreement entered between Saleem and respondent No.1 was subsequent in time as the same was made in the year 2010 whereas the sale-deed took place between Saleem and the applicant in 2009, which is prior in time meaning thereby that when the lease agreement took place between Saleem and the respondent No.1 the land in question bearing S.No.383/3 had already been sold by Saleem to the applicant, which fact had not been denied by the applicant as well as by the counsel representing the respondent No.
1. The above fact is also evident from the lease agreement that in the said lease agreement S.No.383/3 was not part of the said lease agreement meaning thereby that both Saleem and the respondent No.1 were aware of the fact that since the said land bearing S.No.383/3 had already been sold by Saleem to the applicant hence the question of giving the said land on lease to respondent No.1 hardly arises, which fact also had not been denied either by the applicant or the counsel representing the respondent No.1. The only ground taken by the respondent No.1 is that since he is occupying the land since 2006 of which no documentary evidence has been produced except by producing certain statements recorded by the police, which, in my view, could not be considered without there being any valid and legal document to support the version of the respondent No.
1. The counsel for the respondent No.1 in my view has totally failed to prove with cogent material/document to support the viewpoint of the respondent No.1 that he is in occupation of the land since 2006. However, if it is assumed for the argument's sake that the respondent No.1 is in occupation of the land since 2006 but the fact had remained uncontroverted and undeniable that the new lease agreement took place between Saleem and the respondent No.1 only in 2010 when admittedly the land had already been sold in the year 2009 to the applicant by Saleem.
10. In view of the above recorded facts, I have come to the conclusion that since Saleem had already sold the land to the applicant in 2009 and had entered into lease deed with respondent No.1 in 2010 in which the land bearing S.No.383/3 was not part of the said lease, the occupation of the land bearing S.No.383/3 by the respondent No.1 is illegal, which he has to vacate since the said land, in my view, belongs to the applicant. The learned Judge while passing the order has lost sight of this important aspect of the case and has passed the order simply by relying on the statements recorded by the police without ascertaining the above facts hence the order passed by the learned Judge dated April 12, 2011 is hereby set aside. The respondent No.1 since is occupying the land illegally is directed to vacate the land immediately. The applicant would be at liberty to adopt all legal measures in this regard for getting his land vacated from the respondent No.1.
11. The Cr.R.A. Stands allowed in the above terms.