' SALAHUDDIN PANHWAR, J.---Applicant Muhammad Aslam has assailed Order dated 11th May 2012, passed by the IInd-Additional Session Judge, Ghotki, whereby Direct Complaint No,48 of 2011 filed by the applicant, under section 3/4 of the Illegal Dispossession Act 2005 was dismissed.
2. Relevant facts as set out in complaint are that, an agricultural land owned by Muhammad Saddiq, Muhammad Ibrahim. Muhammad Aman and Muhammad Ali, was un-partitioned; one co- sharer namely Muhammad Saddiq, having share of 20 paisa, 6.13-1/2 acres from block 83/1 to 4 and block 84/1 to 4, sold out his share through registered sale deed to the respondent/accused No,2 and possession was handed over to him on 5th September 2011, applicant and other co-sharers along with hari (Peasant) Barkat Ali were available at their lands, all of sudden proposed accused/respondents Nos. 1 to 4 armed with K.K.
Accused Nos.5 and 6 armed with pistols and 5/6 unidentified persons tried to take illegal possession of the agricultural land bearing S.Nos.84/1 and 84/4; total area (7-37 acres) forcibly; accused/ respondents disclosed that they have purchased the in-question land, therefore, their possession is legal if any one will raise objection, will face the consequences.
3. Learned counsel for applicant has inter alia contended that impugned order is illegal as while deciding application, under section 7 of the Act for interim relief, the trial court was not competent to dismiss the complaint; respondent illegally occupied 1-20 acres, whereas he has purchased the share of his brother which was 6-13 acres and forcibly occupied more area; charge was framed, therefore, impugned order is not maintainable under the Law.
4. Learned counsel in support of his contention has relied upon Muhammad Riaz Ahmed Khan v.
Imran Abdullah and 5 others (2009 PCr.LJ 491), Shahabuddin v. The State (2010 PCr.LJ 422), Shahabuddin v. The State (PLD 2010 SC 725), PLD 2007 SC 423, PLD 2009 Karachi 65, 2009 PCr.LJ 491, Mst. Zaib-un-Nisa v. Rehmat and 2 others (2011 PCr.LJ 666), PLD 2007 SC 2423, Mumtaz Hussain v. Dr. Nisar Khan and others (2010 SCMR 1254).
5. Conversely, learned counsel for the respondent has argued that respondent No,2 is co-sharer subject matter property is un-partitioned agricultural land; respondent No,2 has purchased through registered sale deed and sale agreement and has filed suit for Specific Performance.
Declaration and Permanent Injunction on 22nd November 2011, whereas, above complaint is filed by applicant on 25th November 2011 after filing the suit; wrong application of section 203 Cr.P.C. In impugned order will not dabar the respondent from his legal right. He has relied upon case-law Abdul Sattar v. Land Acquisition Collector Highways Department and others (2010 SCMR 1523), Zahoor Ahmed and 5 others v The State and 3 others (PLD 2007 Lahore 231), PLD 2010 SC 661, Mst.Thayatan Khatoon and others v. Muhammad Ramzan and others (2012 SCMR 229), Habibullah and others v Abdul Manan and others (2012 SCMR 1533).
6. Learned counsel for State has adopted the arguments of respondents.
7. I have heard the arguments, as advanced by respective sides and have carefully examined the available material.
8. Candidly, Para No,2 of the complaint, discloses that subject matter land is agricultural and un- partitioned one and in Para No,3 reflects that Muhammad Siddique brother of applicant has sold out his own share of 20-paisa to respondent/proposed accused No,2 and possession was handed over to him in Para-4 it reveals that on 5-9-2011, respondents being armed forcibly occupied 7-00 acres 20-ghuntas. Whereas; it is also matter of record that respondent No,1 has filed suit for Specific Performance of Contract on 22-11-2011, which pertains to the same area which is subject matter and complaint was filed on 25-11-2011.
8(sic.) Learned counsel for respective parties have relied, upon plethora of cases, which pertains to the interpretation of Illegal Dispossession Act and applicability in various prospects; there is no cavil that this Act is enacted in order to curb the activities of land grabbers and Qabza Mafia groups. This has been the objective of the Act, whereby this criminal speedy remedy was provided to rescue the legal occupants but in these days. It is surfaced that every person, if he is out of possession of any property in any manner, and his case is falling within the jurisdiction of ordinarily remedy provided under section 8 of Specific Relief Act, 1877, is trying to approach the court (s) while attempting to make a civil case into criminal nature so as to avail remedy by this enactment.
Since it is well settled proposition of law that every criminal case has to be decided in its own peculiar circumstances and facts the honourable Supreme Court, in the dictum, reported as Mumtaz Hussain v. Pr. Nasir Khan and others (2010 SCMR 1254), has provided guidelines for the Court (s) to examine, attracting of Provision of Section 3 of the Illegal Dispossession Act, 2005, while holding that Court is required to examine as to whether property was an immovable property; secondly that the person was owner or the property was in his lawful possession; thirdly the accused entered into or upon the property unlawfully: fourthly that such entry was with intention to dispossess i,e, ouster, evict or deriving out of possession against the will of person in actual possession or to grab i,e, capture, seize suddenly, take greedily or unfairly, or to control i,e, to exercise power or influence over regulate or governs or relates to authority over what is not in one's physical possession or to occupy, i,e, holding possession, reside in or something.
9. Accordingly, it would be proper to examine the case in hand on the above touch-stone.
Applicant himself admits that the subject matter property is undivided one hence in such like event it is legally presumed that every shareholder of a joint holding would be deemed to be in joint possession, therefore, co-sharer Mohammad Siddique, brother of applicant, cannot be legally presumed to be out of possession of such joint holding, who undisputedly sold out the share to accused/respondent through register sale deed, hence the accused / respondent, legally to be presumed, to be standing in the same position of such co-sharer. Without prejudice to this the complainant/applicant has further admitted in his complaint that the possession was handed over to the respondent by the Seller who was co-sharer with the applicants. Since the complainant/ applicant himself admits about delivery of possession to the accused/ respondent by an admitted co-sharer then the complainant/applicant is not legally justified to allege that the accused/respondents disposses the applicant. Further, it is also a matter of record that suit for Specific Performance was filed before this complaint and no criminal case regarding the criminal assault, if any committed by respondents/accused B was lodged. Thus what becomes evident on record is that accused/ respondent was put in possession by an owner (co-sharer), accused/ respondent possessing subject matter under a register document and that applicant / complainant was not in possession of the subject matter at the time of alleged dispossession because admittedly prior to such date the possession of the subject matter stood delivered to accused / respondent by brother of applicant / complainant, namely Mohammad Siddique, a co- sharer in joint holding. Moreover, under Illegal Dispossession Act, trial court is not competent to determine the legal character and make partition of the landed property , as same is not vested in its jurisdiction C thus only civil court revenue fora are competent to resolve such controversies.
10. Thus keeping in view the guide-lines, provided by the honourable Supreme Court of Pakistan in the dictum, referred above, I am of the considered view that provision of section 3 of the Act is not applicable to the instant case and learned trial Court was well justified in dismissing the complaint of the complainant/applicant.
9(sic.) Regarding the contention of applicant counsel that trial judge has misapplied section, while passing impugned order, in that respect it would be suffice to say that mere mentioning the wrong section in order, will not prejudice the either party, important aspect is that, under law, it has to be seen that whether reasons assigned by the concerned court while delivering any order are justified and within the parameters of relevant law, if the same are within the law, such order cannot be annulled merely on the basis of application' of wrong section.
10(sic.) As discussed above, this revision application is not maintainable under the law and these are the reasons of short order dated 28-9-2012, whereby this revision application was dismissed.