' SHAHNAWAZ TARIQ, J.---Through instant revision application, applicant Mst. Nasreen alias Nagina has agitated the impugned order dated 21-11-2011 passed by learned VI Additional District and Sessions Judge, Karachi South, whereby Criminal Complaint No.805 of 2008 filed by applicant was dismissed.
2. Relevant facts spelt out from the instant revision application are that applicant had purchased the Flat No. 303, situated at 3rd Floor, Sea Breeze Plaza, Plot No. ST-6, Shahrah-e-Faisal, Karachi, from its lessee namely Hashmat Ali son of Muhammad Ali vide Sale Agreement dated 14-5-1982 and after payment of the entire sale consideration she took possession of said flat and its original title documents including its indenture of lease deed and got transferred her ownership in the record of Builder Messrs Sea Breeze (Pvt.) Ltd., as such she is real and actual owner of the flat. It is further stated that the applicant being Pardanasheen lady and due to her ailment, appointed one Zulfiqar Ali as her attorney to look after said flat. On 4-8-2008, her attorney Zulfiqar All informed her that flat in question was found unlocked and respondents Nos. 2, 3, 4, 5 and 6 were in illegal possession of said flat. The applicant being aggrieved filed complaint under sections 3 and 4 of Illegal Dispossession Act 2005 before the trial Court. The learned trial Court also called report from the concerned SHO and police submitted detailed report regarding the subject flat wherein it is mentioned that Suit No.269 of 2011 (New No. 1694 of 2002) was filed by one Muhammad Khalid, the respondent No. 5 against the Builder of subject flat i.e. Messrs Sea Breeze (Pvt.) Ltd. And the applicant never remained in possession of said flat. The learned trial Court considering the circumstances and material available on record dismissed the complaint vide impugned order 21- 11-2011.
3. Learned counsel for the applicant has contended that the applicant is lawful owner of the subject flat by virtue of the sale agreement dated 14-5-1982 and since then she has been legally in possession of the said flat. He has further contended that there is no legal embargo for filing of civil proceedings by the aggrieved person as well as criminal proceedings in accordance with law. He has further contended that the trial Court has not appreciated the relevant facts, circumstances and documents available on the record as such the impugned order is purely illegal, hence, not maintainable. In support of his contention learned counsel for the applicant has relied upon 2009 MLD 1162, PLD 2007 Quetta 72, 2009 MLD 850, PLD 2003 Lahore 48 and 2001 CLC 1312.
4. Learned counsel for the respondents Nos. 2 to 6 has vehemently opposed the submissions made by learned counsel for the applicant, and has contended that neither the applicant is owner of the subject flat nor she was ever in possession, therefore, instant revision application -is not maintainable. He has further contended that the applicant has filed J.M. 28/88 and at Para No. 12 of C.M.A. 169 of 2010, it has been observed that regarding Flat No. 303 in Sea Breeze Plaza situated at Plot No. ST-6, Shahrah-e-Faisal, Karachi not a single document has been produced or annexed with the application in support of her claim. He further pointed out that order dated 27-4-2010 passed by this Court in Criminal Revision Application No. 85/2009, which was filed by the applicant challenging the order dated 6-4-2009 passed by the VI Additional District Judge, Karachi South in Criminal Complaint No.805 of 2008 and same was disposed of by consent of the parties and case was remanded back to the trial Court to decide afresh pertaining to the question of filing of criminal complaint through power of attorney as well as maintainability of complaint in terms of subsection (c) and (d) of section 2 of the Illegal Dispossession Act, 2005. Learned Counsel has further submitted that respondent No. 5 had filed Civil Suit No.269 of 2000 (New No.1694 of 2002) against Builder Hashmat Ali Chowala, Managing Director and Messrs Sea Breeze (Pvt.) Ltd. For cancellation of documents and permanent injunction and claiming to be in possession of subject flat. He further contended that the Civil Suit No. 503 of 2007 was also filed by the respondent No. 3 before the learned IX Senior Civil Judge, Karachi South, wherein applications under Order 1, Rule 10, C.P.C. And under section 12, subsection (2), C.P.C. Were also filed by the present applicant but the same were withdrawn upon the objection. In support of his contention learned counsel for the respondents Nos.2 to 6 has relied upon 2006 MLD 1942, 2007 PCr.LJ 1299 and 2007 YLR 2236.
5. Learned APG has supported the impugned order and has contended that instant revision application is not maintainable under the law.
6. I have heard learned counsel for the parties, learned APG for State and have gone through the record and case-laws cited with their assistance.
7. From the perusal of the record it is transpired that the applicant has filed Criminal Complaint No. 805 of 2008 under sections 3 and 4 of Illegal Dispossession Act 2005 before learned VI Additional District Judge, Karachi South claiming herself to be the owner of subject flat but the same was dismissed by the learned trial Court holding that the applicant was not in possession of the subject flat and even her claim does not fall within the ambit of Illegal Dispossession Act 2005. From A perusal of the comprehensive report submitted by SHO Police Station, Saddar, it has transpired that applicant neither remained in possession of subject flat nor she is owner of the same, as SHO has investigated the subject issue and recorded the statements of the locality persons but none has deposed in favour of the applicant in this regard. Perusal of copy of plaint of Civil Suit No. 269 of 2000 (New No. 1694 of 2002), it is crystal clear that Muhammad Khalid son of Muhammad Ibrahim has filed suit for cancellation of lease documents and Permanent Injunction against Builder Messrs Sea Breaze (Pvt.) Ltd. Before this Court claiming to be in possession of the subject flat being its bona fide buyer. Thereafter C.P No. D-4177 of 2011 was also filed before this Court by respondents Nos. 3 and 5 against Messrs Sea Breeze (Pvt.) Ltd. Which also indicates the same facts and circumstances regarding possession of the subject flat.
8. Admittedly the applicant has been claiming her ownership by way of buyer of subject flat in the year 1,982, but lease was not executed in her favour nor such document has been produced by her.
As per her own admission she herself never remained in physical possession of said flat but she appointed one Zulfiqar. Ali as attorney to look after said flat and he informed her that when he visited said flat on 4-8-2008, and found respondents Nos. 2, 3, 4, 5 and 6 to be in possession of said flat, which is contrary to the entire claim of the applicant that she was in possession of said flat.
9. At this juncture, I would like to refer the case of Nazir Ahmed v. Asif and four others, PLD 2008 Karachi 94, wherein it has been held that occupation of person who claims possession must be in lawful possession over property in question. For the purpose of proving such fact, it is incumbent upon person claiming lawful possession of property, to produce certain documents or evidence to prove his possession of lawful possession over the property, in case he has been dispossessed from the property. In absence of any documents showing title of petitioner or his occupation as lawful owner or occupier of the property in question, his claim of its being lawful occupier could not be exceeded to.
10. From the above discussion of the material as well as facts and arguments advanced by parties, the applicant has failed to produce any evidence or documentary proof to establish her ownership over the subject flat and mere agitating her ownership on the strength of simple sale agreement deserves no merit for consideration, as neither she produced any registered lease deed in her favour pertaining to said flat nor she has produced any other documentary proof including amenities bills on her name or on the name of Builder duly paid by her regarding said flat that she ever remained in possession of the same. It is also worthwhile to mention that the mandatory requirement for invoking provisions of Illegal Dispossession Act 2005, is also missing in present case as the applicant has failed to mention the specific date and time of her alleged dispossession from the said flat. I am of the considered view that the applicant has failed to point out any irregularity and infirmity in the impugned order dated .21-11-2011 passed by learned ITT Additional District and Sessions Judge, Karachi South, which does not call for interference and is maintained accordingly. Consequently, instant Criminal Revision Application stands dismissed.