OM AR SIAL, J. Mohammad Imran filed a criminal complaint under the Illegal Dispossession Act, 2005 before the learned 12th Additional Sessions Judge, Karachi West. On 05.05,2023, they learnt that the trial court ordered the property taken from the opponent Mohammad Asif and handed over to Mohammad Imran. This order has been challenged through these proceedings.
2. The case is that Mohammad Imran alleged that he owns a property bearing No. 162 in Sector 21- B/C, Category 1, Lyari Express Resettlement Project, which he purchased from Sabra Jillani on 06.03.2020. Imran's duties with his employers took him away for some time, and when he returned on 05.12.2020, he saw Mohammad Asif living on the property.
3. I have heard the learned counsel for the applicant, the answering respondent, and the learned Additional Prosecutor General. My observations and findings are as follows.
4. The primary aspect of the case, which seems to have swayed the learned trial court in ordering that the property be taken away from Mohammad Asif and handed over to Mohammad Imran, was that in a preliminary inquiry, the documents of title of the property in question were with Mohammad Imran and not with Mohammad Asif. The documents of the property on which Mohammad Asif relied were fake.
5. Cases under the Illegal Dispossession Act, 2005 often become very complicated as there is a tendency among people to use its provisions as a substitute for a declaration of ownership and rent eviction. In many cases, properties are purchased by some people, with people living on those properties for ages. Then the new owner claims that as he has an ownership document, he has the right to initiate criminal law and take over possession. Often, civil suits for declaration are pending in the civil courts when complaints under the Act of 2013 are made. The line between dispossession, ownership and eviction is thus blurred. The Act, the original aim of which was to prevent dispossession by the land mafia, ironically after the change in its scope, seems to be more beneficial to the land mafia rather than the persons it originally sought to protect. Learned trial courts seized of criminal complaints under the legislation, often make a slight overreach and also decide issues regarding ownership of the property. This is not the correct approach. Only the civil courts of competent jurisdiction can make such findings. Preliminary inquiries made in these cases also inevitably result in the police officer submitting a reply in court that, according his inquiry, the owner of the property is one or the other of the contesting party. The police rarely comment on who was in "possession" of the property when "dispossession" is alleged. No sworn statements of people residing in the locality are ever collected. No evidence is ever collected to establish possession. As mentioned above, ownership, particularly disputed property ownership, cannot be determined by a simple statement of a police officer declaring who the owner is. This issue requires evidence to be recorded by a civil court before such declarations or pronouncements of a conclusive nature are made. Prima facie ownership of the property may only be one of the factors considered by a criminal court when adjudicating a section 7 application under the Act of 2005. The primary finding has to be who was in possession when dispossession is alleged and on what basis the possessor claims his possession. A person's possession of a property, when not the owner, may not always be illegal.
6. In the current case, prima facie, it seems that Mohammad Imran based his property ownership on an agreement to sell. If this is found correct, the question arises about how an agreement to sell established title. The Allotment Letter of the property shows that it was allotted to Sabra Jilani with the condition that selling the property is prohibited. How did Sabra Jilani agree to sell the same to Mohammad Imran? How did the Lyari Expressway Resettlement Project issue a Transfer Order in the name of Mohammad Imran when, apart from the restriction on sale, there is no document on record to show that the sale transaction between Sabra and Imran ever culminated? On the contrary, Mohammad Asif has documents to show prima facie that the property's electricity, water and gas connections are in his wife's name and that he has been paying the utility charges since 2009. The learned counsel for Mohammad Imran has not denied this.
7. Given the above, prima facie, it seems that Mohammad Asif has been in possession of the property since 2009. It would, therefore, be unsafe to order him evicted arbitrarily. An opportunity should be given to both Mohammad Imran and Mohammad Asif to show at trial how they claim to be in possession of the property. The impugned order is, therefore, set aside. The parties should wait till the conclusion of the trial so that the learned trial court decides their respective claims of being in lawful possession after it has had an opportunity to review the evidence produced.