' SHAHNAWAZ TARIQ, Through captioned criminal revision application, applicant Daim Ali Khan Khoso has impugned order dated 09.05.2015, passed by the Court of learned III-Additional Sessions Judge, Sukkur, whereby Criminal Misc. Application No,478 of 2015 filed by applicant was dismissed.
2. Necessary facts mentioned in instant revision application are that applicant is one of legal heirs and lawful owner of the property admeasuring 1950 sq.ft situated at Deh and Tapo old Sukkur, and Form VII is still mutated in the name of his deceased father namely Moula Bux Khoso , who was an Advocate High Court. It is further averred that applicant along with his sister is residing in their residential house. While respondent No,2 Muhammad Mithal alias Khan is real brother of applicant and since several years, he is residing separately at Larkana against whom applicant had moved an application on 21.05.2008 to District Police Officer, Sukkur. On 09.10.2015, some persons trespassed into the house of applicant and stolen away original documents of their residential house along with original CNICs of applicant and his sister Mst. Fahmida Parveen. Applicant recorded such NC report at Police Station Site Area, Sukkur and also moved application to respondent No,4 Mukhtarkar (Revenue), Taluka New Sukkur, to keep it on record so that no one can prepare any document of disputed property for sale purpose. It is further stated that applicant considering the dilapidated condition of said house, decided to repair/reconstruct the same. On 17.04.2015, when applicant and his sister had gone to attend funeral ceremony of his friend, respondent No,1 and his companions trespassed into the house and took away the household articles and he also deployed his armed persons in said house. On return, applicant and his sister found armed persons available inside their house and on enquiry, they disclosed that respondent No,1 has deployed them there and they issued threats to applicant and his sister. Applicant approached P.S Site Area and conveyed the incident to the Duty Officer, but he being under influence of respondents, flatly refused to initiate any action against accused. On 20.04.2015, applicant moved such application to SSP, Sukkur, who forwarded the same to SHO P.S. Site Area, but no action has been initiated as yet. Consequently, applicant filed direct complaint under sections 3 and 4 of Illegal Dispossession Act, 2005, before the Court of learned Sessions Judge, Sukkur, which was transferred to the Court of learned III-Additional Sessions Judge, Sukkur and notices were issued to the respondents and reports were called from concerned SHO and Mukhtiarkar and they submitted their reports. After hearing arguments of the parties, learned trial Court dismissed said complaint vide impugned order, hence instant criminal revision application.
3. Applicant contended that learned trial Court has not properly considered the facts, circumstances and material placed on record, hence impugned order is contrary to the law laid down by the superior Courts; that entry of disputed property is still kept on record in the name of their deceased father, and without mutation of said house in the names of legal heirs, respondent No,2 alone is not empowered to sell out said property to respondent No,1 and such transaction is illegal; that reports submitted by concerned Mukhtiarkar and SHO are based on alleged sale agreement executed between respondents Nos.1 and 2; that learned trial Court without recording evidence of applicant and his witnesses' has dismissed direct complaint on the basis of reports that applicant had also sold out his share of the property to respondent No,1; that respondents have not filed any documentary proof regarding any amount allegedly paid to the applicant regarding the alleged sale of disputed, house. In support of his contention, applicant relied on the case of Raheem Tahir v. Ahmed Jan and 2 others, (PLD 2007 SC 423), Wajid Ali Khan v. Shaikh Murtaza Ali and 2 others (PLJ 2003 SC 714), Abdul Kareem Khan v. Mst. Zahida Khan and 2 others (2008 YLR 2434), Iftikhar Ahmed v. Zulifquar Ali and 3 others (2008 PLD Lahore 59), Allah Ditto v. Muhammad Ishaque and another (2013 YLR 1580) and Gul Hassan v. Muhammad Usma n and 4 others (2012 PCr.LJ 268).
4. Mr. Shahzado Dreho Advocate filed his Vakalatnama on behalf of respondent No,2, along with objections, which is taken on record. Learned counsel contended that applicant has not come to this Court with clean hands and has suppressed the material facts in instant case; that applicant is not owner of the disputed house, as applicant, respondent No,2 and Mst. Fahmida Parveen, being the legal heirs of the deceased Moula Bux Khoso, had sold out their house to respondent No,1 and their sister Mst. Fahmida Parveen received entire sale consideration from respondent No,1 in presence of witnesses namely Irshad and Ghulam Nabi under sale agreement; that applicant has also filed C.P. No,S-1328 of 2015 before this Court against respondent No,1 and others by narrating false facts and circumstances and respondent No,2 has already filed application under Order, I,.
Rule 10, C.P.C. in said petition, whereby applicant has admitted the sale of the said house to respondent No,1; that applicant had vacated the disputed house and shifted to a rented house and he was not in the physical possession of said house at the time of alleged dispossession; that respondent No,1 is bona fide purchaser of the disputed house, hence instant revision application is liable to be dismissed. In support of his contention, learned counsel relied on the case of Muhammad Kauser lqbal v. ADJ and others (2012 PCr.LJ 1405), Gulfam Ahmed v. Additional Sessions Judge Gujranwala and 3 others (2011 PCr.LJ 487), Mustaqeem v. State and another (2010 PCr.LJ 286).
5.Learned APG has supported the arguments advanced by the applicant and submitted that impugned order is liable to be set aside and case may be remanded to learned trial court for recording of evidence of the parties.
6.Heard arguments advanced by the parties supported with case law and scanned the material available on record.
7.Perusal of record emanates that applicant and respondent No,2 are real sons of deceased Moula Bux Khan Khoso Advocate, while Mst. Fahmida Parveen is their real sister. The property in dispute was owned by their deceased father, which is still maintained in the name of deceased. No material is available on record that either party had filed any succession application for issuance of letter of administration before the Court of learned District Judge nor parties had approached the concerned Revenue Authorities for mutation of the title/Foti Khata of disputed house in favour of all the legal heirs.
8.In the case of Iftikhar Ali v. Zulfiqar Ali (supra), it was observed as under:-- "Complaint filed by the petitioner for illegally dispossessed from his shops had been dismissed by the Sessions Court on the ground that one respondent was the real brother of the petitioner and the shop in question had been sold in favour of the petitioner by means of a registered sale-deed.
Impugned order had given the impression that if a brother illegally dispossessed his another brother, the illegal dispossession act would not be attracted and further that said act would not come in to play if the property had been procured by any of the parties by mean of registered sale-deed. Such view expressed by the Sessions Court could not be accepted. Illegal Dispossession Act, 2005, covered all cases of illegal occupants without any distinction except those which were already pending before any other forum.
' In case of Allah Ditto v. Mohammad Ishaque (supra) it was observed as under:-- "Petitioner filed complaint alleging his illegal dispossession and after seeking report from police, trial Court dismissed the complaint. Previous owner of the suit land already sold the land to the petitioner in the year, 2009. Previous owner also entered into lease agreement with respondent in year, 2010, in which one survey number of land purchased by the petitioner was not part of that lease. Occupation of land bearing survey number purchased by petitioner, by respondent was illegal which he had to vacate as the same belonged to the petitioner. Trial Court simply relied upon the statements recorded by police without ascertaining the fact of ownership of land in question, order passed by the trial Court is set aside. "
' In case of Gul Hassan v. Mohammad Usman and 4 others (supra) it was observed as under:-- "Complaint filed by the petitioner againstalleged illegal dispossession from the property was dismissed by the trial Court holding that according to the reports the accused had purchased the property in question from the complainant through sale agreement which having been denied by the complainant, the matter seemed to be of Civil nature, which could only be resolved by Civil Court. Trial Court did not go through the material question relating to the complainant's illegal and forcible dispossession as was alleged by him in his complaint filed under section 3 of Illegal Dispossession Act, 2005, and ignored relevant provisions of the Act. Impugned order was set- aside."
9.Pursuant to the direction issued by the learned trial Court, concerned Mukhtiarkar and SHO submitted their reports which reflect that the property in question is still in the name of the deceased father of applicant and respondent No,2 and they have sold out the disputed house to respondent No,1 in the sum of Rs,17,00,000/-under a sale agreement. Considering the said reports, learned Court has dismissed the complaint in limine.
10.Bare perusal of impugned order reflects that learned trial Court did not adjudge the reports submitted by SHO and Mukhtiarkar prudently, which ostensibly were not submitted as envisaged in terms of section 5 of Illegal Dispossession Act, 2005, whereas SHO was bound to conduct a concrete inquiry to examine the allegations of illegal dispossession by the aggrieved party and furnish a comprehensive report flashing the true facts to assist the Court in reaching to correct conclusion, hence such vague reports do not hold any field and Court should not take such incomplete reports in consideration. Learned trial Court while passing the impugned order was absolutely influenced from the reports submitted by authorities emphasizing the execution of sale agreement, and the Court has not appreciated the entire involved circumstances and available material judiciously, and mere execution of an unregistered sale agreement could not defeat the right of any party to invoke the jurisdiction of the competent Court under provisions of Illegal Dispossession Act, 2005.
11. Respondent No,2 has asserted that parties have sc,J out the disputed house to respondent No,1 and entire sale amount was received by applicant and their sister Mst. Fahmida Parveen, while applicant has controverted the execution of said sale agreement in respect of disputed house, and he also repudiated his signatures on said sale agreement. Respondent No,1 has been agitating the slle of the house in dispute on the basis of an unregistered sale agreement which was not registered in terms of Section 17 of Registration Act, nor any payment receipt has been attached along with said sale agreement nor any acknowledgement of delivery of possession was executed by applicant and Mst. Fehmida Parveen in favour of respondent No,1 in continuation of said sale agreement. Consequently, instant sale of disputed house itself is illegal and void as title of the property in question was never transferred in the names of legal heirs of deceased Moula Bux Khoso. Thus, any subsequent invalid sale has neither created any legal character in favour of respondent No,1 nor any cause of action has been accrued to him to resist the rights and title of the legal heirs over the house in question. Therefore, respondent No,1 mere on the basis of said unregistered sale agreement neither can claim his right of ownership nor he became owner of property nor can claim any protection under Section 53-A of Transfer of Property Act, 1882. Reliance is placed on the case of Wajid All Khan v. Shaikh Murtaza All and 2 other (PLJ 2003 SC 714).
Admittedly, respondent No,2 was not residing in the disputed house at the time of its sale and he has been permanently residing in Larkana, while applicant and his sister are claiming to be in possession of the house in question at the time alleged dispossession which requires serious consideration.
12. There are two different aspects of present controversy i,e, firstly, the question of sale of suit house through sale agreement without mutation of title/Foti Khata in favour of the legal heirs of deceased Moula Bux Khoso, and the matter relating to the sale agreement in question could only be dealt with by the Civil Court; and second, the question of illegal dispossession is absolutely different from the civil liabilities, and learned trial Court was bound to ascertain as to whether the allegations levelled by the applicant constituted an offence under Illegal Dispossession Act, 2005, or otherwise. Trial Court, in circumstance, had failed to exercise the jurisdiction vested in it in appropriate manner and committed material illegality and gross irregularity, while dismissing the complaint without recording the evidence of the parties and affording them opportunity to produce their documents during the trial. 13.Indeed,execution of sale agreement of respondent No,1 has been disputed by the applicant, while the ownership of the house in question by their deceased father, has been admitted and acknowledged by respondent No,1, thus applicant was not legally barred from maintaining the criminal actions.
14.For the facts and circumstances discussed above, I am of the considered view that the impugned order is result of material illegality and gross irregularity which attracts interference of this Court, hence same being without any legal substance is set aside and case is remanded to the learned trial Court for its disposal on merits accordance to law.
15.The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on merits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.