FAHIM AHMED SIDDIQUI, J.---The applicants have preferred the instant criminal miscellaneous application against the impugned order dated 16.11.2017 passed by the learned Additional Sessions Judge-HI, Shikarpur. Through the impugned order the learned trial Judge has allowed the Criminal Complaint of the respondent No,1 (complainant) against the applicants under the provisions of the Illegal Dispossession Act, 2005, and taken cognizance of the case.
2. The factual matrix of the instant application is that the respondent No, 1 has filed a complaint under Sections 3, 4, 5, 6 and 7 of Illegal Dispossession Act, 2005, against the applicants before the Court below. In the said complaint, the respondent No, 1 alleged that the applicants have dispossessed him many years back from their agricultural land situated in Deli Fazul Josh, Tapo Waryaso of Taluka Garhi Yasin, District Shikarpur. According to the said complaint, the applicants are enjoying from the land in question and they are not allowing the respondent No, 1 to enter into the land and the respondent. No, 1 apprehends that the record of rights has also be changed by the applicants. On such complaint, the learned trial Judge called report from the concerned SHO as well as Mukhtiarkar. It was revealed from the reports so received that the applicants as well as respondent No, 1 are co-sharers in the land in question. From the report, it is revealed that the father of respondent No, 1 had a share of 12.5%, which was inherited to the respondent No, 1 and his other siblings.
3. Learned counsel for the applicants submits that the applicants and the respondent No,1, are co- sharers over the disputed land. According to him, there are minor share of the respondent No,1 in the property in question and the applicants have purchased the property from the major share- holders of the property. According to him, the property has yet not been legally or privately partitioned but the portion that was purchased by them is actually belonging to them. He submits that the portion of the share of father of respondent is available and he may enter On it. He submits that being co-sharer, the respondent No, 1 cannot proceed under Illegal Dispossession Act against the applicants, as the said Act has no applicability to the instant case.
4. The learned counsel for respondent No,1 submits that the respondent No,1 inherits a portion in the property but the applicants are denying the same. He submits that .the portion of land which is under cultivation is in occupation of the applicants and some portion is barren. However, he admits that the land is yet not privately or officially partitioned and the father of respondent No,1 has the share of 12.5% in the entire land in question.
5. The learned DPG submits that as the parties under litigation are co-sharers; therefore, the provision of the Illegal Dispossession Act, 2005 does not attract. He submits that each cosharer-is owner and possessor of every inch of land.
6. I have scrutinized the entire record in the light of the valuable submissions made before me. The concerned Mukhtiarkar is the custodian of the records of rights. According to him, both the parties are co-sharers in the land in question. It is pertinent to mention that the Illegal Dispossession Act, 2005, is a special legislation to shelter the lawful owners and occupants of immoveable properties, from their illegal dispossession of their properties by property grabber, who does not have any lawful authority. It will be helpful if Section 3 of the said Act is reproduced, which reads as: "3. Prevention of illegal possession of property, etc.--(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.
(2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of offence shall be compensated in accordance with the provisions of section 544 of the Code."
7. From the bare perusal of the above provision of law, it is clear that a person who has any lawful authority cannot be considered as dispossessor and grabber of the property. The object and spirit of legislation of Illegal Dispossession Act, 2005, is to curb the activities of the property grabbers.
Preamble of the Act (ibid) manifest that it aims to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession by the property grabbers. In the instant case there is no denial to this fact that both the parties are co-sharer and the property has yet not been partitioned. Even no litigation has yet been initiated for partition of the property in question. Both the parties admit that the property is a shared property between them. It is contended by the applicants that they are enjoying their portion of land, which vas purchased from the previous share-holders and the portion of land belonging to applicant is available for him.
The grievance of respondent No,1 is appeared to be that he intends to have his share from the property, which is cultivable while the leftover portion is barren and needs to be developed for cultivation. The above facts and circumstances lead to the conclusion that there is only dispute between the parties over settlement of proper partition in the land for which the appropriate forums are available under the law. In the instant case, the applicants have purchased the share of one or some of the co-sharers, who put them in possession of the property, and admittedly they are now in possession of the property as co-sharers. In such a situation, it cannot be said that the applicants have dispossessed the respondent No,1 from the property and being co-sharers, provision of Section 3 of Illegal Dispossession Act, 2005, is not applicable to the case of the applicants. In this respect, I would like to take reliance from a case of this Court reported as Muhammad Aslam v. Imamuddin Ahmed and 7 others (2013 MLD 1444). Similar view is taken by a full bench of Lahore High Court in the case reported as Zahoor Ahmad and 5 others v. The State and 3 others (PLD 2007 Lah. 231), wherein it is held that the Illegal Dispossession Act, 2005, has no application to cases of dispossession between
8. co-owners and co-sharers.
9. It appears that the respondent No,1 has tried to give colour of criminal action to a bona fide civil dispute. The respondent No, 1 is seeking possession of the share in land for which adequate and effective remedy is available to him and being co-owners or co-sharers, the applicants cannot be dragged in a proceeding under Illegal Dispossession Act, 2005. As such in view of the above discussion, the instant criminal miscellaneous application was allowed by short order dated 15.01.2017 and the impugned order dated 16.11.2017 was set-aside leaving the parties at liberty to seek remedy available before the appropriate forum; and these are the reasons for the same.