PLJ 2024 Cr.C. (Note) 23
[Sindh High Court, Circuit Court Hyderabad]
Present: Khadim Hussain Tunio, J.
MUHAMMAD ASHRAF--Petitioner
versus
MUHAMMAD SHAHID and 5 others--Respondents
Crl. Rev. Appln. No. S-36 of 2019, decided on 26.4.2019.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435/439 & 561-A--Criminal revision--Disputed house registered in name of applicant--Sale-deed executed--Bogus and forged documents--The applicant has specifically mentioned in memo of complaint that one year ago Respondent No. 1 had dispossessed him from second floor of house illegally and occupied same in his absence--This being factual controversy involved in case cannot be resolved without recording evidence and case of such nature cannot be decided summarily in a slipshod manner as applicant has proved his case to some extent, which requires evidence, impugned order passed by trial Court is sketchy and same has been passed without appreciating material available on record and without considering documents produced by applicant along with complaint in respect of disputed house, impugned order is not legal one as trial Court while passing impugned order has committed illegality and irregularity while dismissing complaint of applicant, which act of trial Court requires interference by this Court--Application allowed.
[Para 8] A
Syed Hammad Ali Shah, Advocate for Applicant.
Mr. Muhammad Asif Arain, Advocate for Respondent No. 1.
Through Mr. Shahzado Saleem Nahiyoon, D.P.G for State.
Date of hearing: 26.4.2019.
Order
Through instant criminal revision application, applicant has challenged the order dated 23.02.2019 passed by learned VIIIth Additional Sessions Judge, Hyderabad, whereby the learned Judge dismissed the ID Complaint No. 70 of 2018 filed by the applicant under Section 3 of Illegal Dispossession Act, 2005.
2. Precisely, the facts of the instant revision application are that the applicant is the owner of House No. 10/E, Unit No. 5 Latifabad, Hyderabad, which was purchased by him from one Muhammad Irfan Sheikh vide registered sale deed dated 15.12.2008 and the applicant is in possession of the title document of the said property. The applicant purchased the open plot of the house in question and from his savings from salary and by obtaining loan from the National Bank of Pakistan being Government servant. The applicant had also obtained loan from House Building Finance Corporation for construction of the house, hence, he constructed double story building at the said plot. Respondent No 1 is brother of the applicant and has had evil eyes on the said house since its inception. About one year ago, Respondent No. 1 has illegally dispossessed the applicant and forcibly occupied the second floor of the house in absence of the applicant and his son Adil Ashraf and shifted along with his family members. The applicant was informed by his family members through telephonic conversation, who then came at the house and inquired from the respondent for illegally occupying the second floor of the house, however, the respondent / accused issued threats to the applicant. The applicant avoiding quarrel remained silent and after few months the respondent / accused started offering out ground floor of shop by claiming himself owner of the house by not allowing the applicant to rent out his shops. Thereafter, Respondent No. 1 made the lives of the applicant and his family members as hell and quarreled with them as well as maltreated and beat them many times and locked them in the house, however, the applicant tolerated the Respondent No. 1 being his brother, as such the Respondent No. 1 had full control to occupy the second floor of the house with intention to usurp the same by claiming himself attorney of the applicant and negotiated with different parties for sale as well as rent out the same shops, therefore, applicant filed a complaint before the Sessions Court, Hyderabad, which was then transferred to the Court of learned VIIIth Additional Sessions Judge, Hyderabad, who called a report from the Mukhtiarkar, Latifabad, Hyderabad and SHOP.S B-Section, Latifabad, Hyderabad, who submitted their reports and stated that the house in question is owned by the applicant/ complainant.
3. After hearing the parties, learned trial Court i.e. VIIIth Additional Sessions Judge, Hyderabad, dismissed the complaint through the impugned order, hence this revision Application.
4. Learned Counsel for the applicant has mainly contended that the SHO P.S B-Section, Latifabad, Hyderabad as well as Mukhtiarkar (Revenue) Taluka Latifabad, Hyderabad and Director Lands, Hyderabad Municipal Corporation have stated that applicant is owner of the disputed property. They have further submitted that Respondent No. 1 / accused has forcibly entered into the second floor of the house in question and his entry in the said house is without lawful authority; that the applicant is possessing title documents i.e. Registered Sale Deed with entry in the record of rights, which is still mutated in the name of the applicant, that the alleged registered Power of Attorney in favour of the Respondent No. 1 / accused is forged and bogus document; that the property in question was already mortgaged with the House Building Finance Corporation (HBFC) and the said property has not yet been redeemed; that during the mortgage of the property in dispute the Power of Attorney alleged to have been executed by the applicant in favour of the Respondent No. 1 is illegal, bogus and forged one; that the applicant due to unfavourable circumstances did not pay the installments regularly which caused to default, therefore, suit was filed by the HBFC against the applicant before the Banking Court, Hyderabad, which was decreed; that the applicant approached the Banking Court and after settlement execution application was withdrawn vide order dated 22.04.2017; that the search certificate dated 30.01.2019 was issued by Respondent No. 5 to the applicant and the applicant has right to protect his possession being lawful owner of the disputed property, that the learned trial Court has passed the impugned order against the law and facts, therefore, he prays for setting aside the same.
5. On the other hand, learned Counsel for Respondent No. 1 / accused has contended that Respondent No. 1 / accused is in lawful possession of the disputed property, that the applicant has executed agreement to sale in favour of Mst. Shabana Shakeel; that the applicant has not obtained any loan from HBFC; that the applicant has not disclosed the time and date of the possession of the property by the Respondent No. 1; that nothing is available on record to show that applicant is dispossessed by Respondent No. 1 from the second floor of the house.
6. Learned D.P.G has supported the impugned order.
7. I have given due consideration to the arguments advanced by the respective parties and have perused the material available on the record.
8. From the perusal of record, it contemplates that the disputed house is registered in the name of applicant and such registered Sale Deed has been executed in his favour which appears to be still intact. Nothing has been brought on record by the Respondent No. 1/accused that he is in lawful possession of the disputed house except Power of Attorney, which too is termed to be a bogus and forged document by the applicant, whose ownership of the so-called property has been admitted by the Mukhtiarkar (Revenue) Taluka Latifabad, Hyderabad and SHO PS B-Section Latifabad, Hyderabad, who in their respective reports have depicted that the house under disputed is owned by the applicant. The applicant has specifically mentioned in the memo. of the complaint that one year ago the Respondent No. 1/ accused had dispossessed the applicant from the second floor of the house illegally and occupied the same in his absence. This being factual controversy involved in the case cannot be resolved without recording evidence and the case of such nature cannot be decided summarily in a slipshod manner as the applicant has proved his case to some extent, which requires evidence, therefore, the impugned order passed by the learned trial Court is sketchy and the same has been passed without appreciating the material available on record and without considering the documents produced by the applicant along with complaint in respect of the disputed house, as such, the impugned order is not legal one as the learned trial Court while passing the impugned order has committed illegality and irregularity while dismissing the complaint of the applicant, which act of the trial Court requires interference by this Court.
9. In view of the above facts and circumstances, I am of the considered opinion that the applicant has made out his case to a position, whereby this criminal revision application is-liable to be allowed. Accordingly, by a short order dated 26.04.2019, the instant criminal revision application was allowed in the following terms:
“Heard learned Counsel for the parties. For the reasons to be recorded later on separately, instant Criminal Revision Application is allowed and the impugned order dated 23.02.2019 is set aside. Consequently, the matter is remanded back to the trial Court to issue Notices to the proposed accused/respondents for filing their reply, frame the charge against them, record evidence and decide the matter in accordance with law after hearing the parties preferably within a period of 03(three) months and compliance report be submitted to this Court through Additional Registrar for perusal”.
7. Above are the reasons for the said short order.
(A.A.K.) Application allowed
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