' SHAHNAWAZ TARIQ, J.---Through captioned criminal revision application, under Sections 435/439, Cr.P.C. r/w Section 561-A, Cr.P.C, applicant Ghulam Raza has impugned the order dated 05.07.2015, passed by the Court of learned 1st Additional Sessions Judge, Sukkur, whereby Cr. Complaint No,17 of 2012 filed by applicant under sections 3 and 4 of Illegal Dispossession Act, 2005, was dismissed.
2.Relevant facts narrated in instant revision application are that agricultural land bearing Survey Nos.40, 643, 644 and 645, admeasuring (16-0) acres situated in Deh Malaho, Taluka Salehpat, District Sukkur, was granted in favour of applicant and one Rab Dino in the year 1973-74.
Subsequently, applicant sold out his share to his sons Ghulam Mustafa and Ghulam Mujtaba and Khata of land was mutated in their favour. The land in question was originally belonged to Irrigation Department and said Department had issued NOC for its allotment through Revenue Department.
Respondents Qalander Bux and Ali Madad raised false claim over (04-0) acres of the land claiming that said land belongs to them and in this regard they filed a civil suit, which is pending in the Court of learned Senior Civil Judge, Sukkur. It is further asserted that on 02.03.2012, at about 10-a.m., applicant along with Fakir Sakhi Bakhsh Rind, Muhammad Islam Bhambhro, Jamsher Bhambhro and Ali Murad went to look-after the land of his sons, and at about 11 a.m., 24 named respondents armed with Kalashnikovs and other/weapons accompanied with SHO Noor Muhammad Channa, and ASI Ali Hassan Shar, came there. On instigation of respondent Sarno Khan Bhambhro, remaining respondents forcibly dispossessed the applicant from the land of his sons and also issued serious threats. Applicant approached the concerned Police Station but his report was not registered, thus he filed a complaint under Illegal Dispossession Act which was dismissed vide impugned order.
3. Learned counsel for applicant contended that land in question is still intact in the favour of sons of applicant and co- sharer Rab Dino; that one Ghulam. Asool Randhawa filed C.P No,D-802 of 2010 before the High Court claiming his Muhag right over the land in question, which is still pending; that upon the complaint of said Ghulam Rasool, enquiry was earlier contradictory claims of the applicant conducted by Circle Officer ACE, Sukkur against the applicant; that applicant and others filed F.C. Suit No, ni1/2012 for Declaration and Permanent Injunction, which is pending adjudication before the Court of learned II-Senior Civil Judge, Sukkur; that record of land in question is available in the office of Mukhtiarkar (Revenue), hence report from revenue authority was necessary to decide the complaint on merits; that report of SHO Januji reflects that there was dispute over 40/41 acres of land, which was purchased by one Muhammad Saleh Bhambhro from said Ghulam Rasool and police with mala fide intention submitted incorrect report before the trial Court; that accused persons do not possess a single document in respect of land in question; that impugned order was passed by learned trial Court without considering the land grant policy.
4.While controverting the above submissions, learned counsel for respondents contended that applicant has not approached this Court with clean hands; that respondent No,3 Qalander Bux and respondent No,4 Ali Murad have filed F.C. Suit No,79 of 2011 in the month of April, 2011, while applicant filed joint written statement on 15.08.2011, and admitted the possession of respondents over the land as cultivators; that applicant has now changed his stance by narrating a false story of dispossession from the disputed land; that sons of applicant and said Rab Dino also filed F.C. Suit against respondents and in para 5 of the plaint, applicant has stated that land in question is in his enjoyment and peaceful possession; that in prayer clause (e) applicant has prayed for grant of permanent Injunction against the respondents; that applicant has concealed the material facts from the Court, and have disproved his subsequent claim raised in his direct complaint, hence trial Court has rightly dismissed the complaint directing applicant to approach concerned Civil Court;
5. Learned APG supported the arguments advanced by learned counsel for respondents and submitted that impugned order is just and proper.
6. Heard learned counsel for the parties and examined the material available on record thoroughly.
7. Perusal of record emanates that applicant in Para-5 of the complain, has alleged that on 02.03.2012, at about 10.00 a.m. complainant along with his companions, went to look-after the land of his sons, and at about 11.00 a.m., 24 named accused persons armed with Kalashnikovs and other weapons accompanied with SHO Noor Muhammad Channa, and ASI Ali Hassan Shar, carne Not and they forcibly dispossessed the three applicant from said land and also issued serious threats.
8. Respondent No,3 Qalandar Bux and respondent No,4 Ali Madad have filed F.0 Suit No,79 of 2011 against petitioner and 10 others for declaration, cancellation and permanent injunction before the Court of Senior Civil Judge, Sukkur. Para-5 of the plaint is reproduced as under:- "5. That on 20.01.2010, plaintiffs came to know that defendant No,3 (District Officer Revenue Sukkur) secretly granted 16 acres of the suit land to the defendant No,8 Ghulam Raza and defendant No,9 Rabban without conducting open ketchry, the 4.00 acres land had already granted/leased to the father of plaintiffs by the Irrigation Department and defendant No,3 illegally granted 16 acres to the defendants Nos. 8 and 9 without any justification."
9. In rebuttal to the averments of above suit, applicant and his both sons being defendants had filed their joint written statement and admitted possession of respondents over disputed land as cultivators. Para. 3 joint written statement is reproduced as under:- "3. That the contents of Para No,3 of the plaint are denied with further clarification that defendant No, has granted the disputed land during 1970-71. Moreover, Irrigation Department/Nara Thar Division is not competent to grant the State land to the father of plaintiff for lease for which no any document has been produced by the plaintiff but only some receipts have been produced, which does not reveal the ownership of the plaintiff. The contention of possession of the plaintiff is only as cultivator and not in the capacity of owner as such the claim of the plaintiff over the suit land is false and managed with mala fide intention."
10. Subsequently, applicant and his both sons also filed F.0 Suit No,Nil/2012, for declaration, mandatory and permanent injunction in the Court of II-Senior Civil Judge, Sukkur, against present respondents along with Government Officials and claimed their physical possession over land in question. Para-5 of the plaint is reproduced as under:- "5. That the plaintiffs Nos.3 and 4 spent lucrative amount over its development and made the land in question fit for the purpose of cultivation and even since its grant, the plaintiffs are in physical possession and enjoyment of the same. Such entry in record of rights in favour of the plaintiffs was also recorded. The plaintiffs are paying land revenue to the Government along with abiano etc." Similarly, prayer clause (e) of the suit is reproduced as under:- "(e) That this honorable Court may be pleased to grant permanent injunction thereby restrain the defendants Nos. 11 and 12 themselves, their agents, servants, subordinates, if any not to either forcibly eject or interfere into peaceful possession and enjoyment of the plaintiffs over land in question to the extent of (3-0) acres, till disposal of the suit."
11. Indeed, applicant and his both sons have already filed F.C. Suit against respondents in respect of land in question which is pending in competent Civil Court, but subsequently, he filed instant complaint against respondents with contradictory stances, thus it would be just and proper that question of ownership may be decided by the Civil Court first. It is well settled that when question of title of property in dispute is already sub-judice before the competent Civil Court prior to the filing of direct complaint, civil proceedings should be adjudicated and decided first, and if complainant succeeded to get decision in his favour, he may approach the Court by preferring the direct complaint. In case of Abdul Haleem v. The State and others (1982 SCM R 988), Honorable Supreme Court has observed as follows:- "After hearing the learned Counsel for the parties and pursuing the authorities cited at the bar, we are of the view that the High Court should have followed the rule laid down by this Court in the case of Muhammad Tufail v. The State and another, namely, that during the pendency of Civil Litigation the Criminal proceedings should have stayed. We would, accordingly, accept this appeal to this extent and modify the order of the High Court to the .effect the proceeding and criminal complaint instituted by the appellant should remain stayed during the pendency of the civil litigation between the parties on the subject-matter".
' In the case of Mumtaz Hussain v. Dr. Nasir Khan and others (2010 SCM R 1254), the honorable Supreme Court has observed as follows:- "17. As the question of title of the property is already pending before the competent Court of Civil jurisdiction before filing of the complaint, therefore, in view of the rule laid down by this Court in the case of Rahim Tahir and Muhammad Akram (supra), the present appeal is dismissed. However, after the decision of such suit in favour of the complainant/ appellant, he can approach the Court under Section 4 of the Act, if so advised."
12. Admittedly, applicant in F.C Suit filed by him on 13.06.2012, in the Court of II Senior Civil Judge, Sukkur, has claimed his peaceful possession over disputed land and prayed for issuance of permanent injunction against respondents not to dispossess him from the suit land. While in complaint, applicant has alleged that on 02.03.2012, respondents forcibly dispossessed him from the land in question. Conversely, in joint written statement filed by applicant in F.C Suit No,79 of 2011, has admitted the possession of the respondents in capacity of cultivators and denied the authenticity of official receipts produced by the respondents. The above referred conflicting stances taken by the applicant are not only self-contradictory but same have invalidated the allegations of dispossession from the land in question, which prima facie indicates the mala fide and ulterior motives on the part of applicant that he has not come to the Court with clean hands. Applicant has deliberately not only made misstatement but misguided the Court and such different and contradictory stances are hit by the principle of estoppel. It is well settled principle of law that no person should be permitted to retract and repudiate from the stance taken earlier in his pleading or evidence adduced by him and shall face the consequences and repercussions of declaration already made by him. In the case of Haji Ghulam Rasool and others v.
Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 376), the honorable Supreme Court has observed as follow:- ' "The doctrine of estoppel is not confined to the matters dealt with under .section 115 of the Evidence Act, for, "stopples in the sence in which the term is used in the English legal phraseology are matters of infinite variety and are by means confined to the subjects dealt with in Chapter VIII of the Evidence Act". It has been defined in Halsbury's Laws of England (2nd Edition), Vol. 13,. "as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability". It is in this sense that it has often been held that even as a rule of evidence or pleading a party should not be allowed to approbation and reprobate."
Estoppel has been defined in Black's Law Dictionary (Sixth Edition) page 551, that party is prevented by his own acts from claiming a right to detriment of other party who was entitled to rely on such conduct and has acted accordingly. A doctrine which holds that an inconsistent position, attitude or course of conduct may not be adapted to loss or injury of another. Estoppel is a bar or impediment which precludes allegations or denial of a certain fact or state of facts, in consequence of previous allegation or denial or conduct or admission, or in consequence of a final adjudication of the matter in a court of law.
13. Perusal of impugned order reflects that the trial Court has passed a just and proper order and applicant has failed to point out any gross illegality or material irregularity committed by the trial Court, hence the impugned order does not call for any interference and same stands maintained.
Consequently, instant criminal revision application stands dismissed being devoid of any legal substance.
' Applicant has taken different rather than contradictory stances which is otherwise hit by principle of estoppel.