There are several remedies available under the Civil and Criminal law at the same time. A person who has been dispossessed can have recourse to any remedy, such as:

1. Filing of civil suit under section 9 of the Specific Relied Act, which is summary procedure;
2. Filing of civil suit for possession under Civil Procedure Code,
3. Criminal Proceedings under sections 145, 146, Cr.P.C.,
4. Initiation of criminal prosecution under section 448, P.P.C.,
5. Complaint under Illegal dispossession Act, 2005

Civil Suit under Section 9 of the Specific Relied Act;

Section 9 of the Specific Relief Act, 1877 deals with a situation where a person illegally dispossessed without his/her consent. The above section has provided a remedy to get back the possession. Section 9 of the Specific Relief Act, 1877 stated that who has without his consent, been dispossessed of immovable property otherwise than in due course of law, he is entitled to recover possession thereof by filling a suit. A plea of title is no defence in the suit and any decision that may be made in that suit will be subject to a title suit which may be eventually filed and the person who has title or even a better right shall be competent to ask for recovery of the property on establishment of such right.

Filing of civil suit for possession under Civil Procedure Code;

If a person who is illegally, unlawfully and unauthorizedly dispossessed without his consent and/or otherwise without due course of law, he/she can avail a civil remedy under section 9 of the Civil Procedure Code for restatement by filing a suit for recovery of possession under Civil Procedure Code. Section 9 of the CPC clearly lays down that the Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Criminal Proceedings under sections 145, 146, Cr.P.C.;

Besides civil remedies, the person who is illegally, unlawfully and unauthorizedly dispossession from the property may also avail criminal remedy under section 145 & 146 Criminal Procedure Code. In terms of Section 145 Cr.P.C. the person who was in possession at the time of initiation of the said proceedings, be put into possession nor to any other person. The provisions of section 145, Cr.P.C. clearly envisage apprehension of breach of peace as a jurisdictional requirement. The issue of possession of a party could only be gone into by a Magistrate after his jurisdictional requirement is satisfied. The purpose of this section is to prevent imminent apprehension of breach of peace over the immovable property. This provision does not authorize a Magistrate to exercise jurisdiction in mere existence of a dispute relating to an immovable property. The Magistrate on receipt of application from a party has to pass order under section 145(1) Cr.P.C. He is required to call the report from the police and after perusal of the same, if he is satisfied from such report or from any other information that there exists a dispute between the parties in respect of the land, which is likely to cause breach of peace, he may pass interim order in terms of section 145(4) Cr.P.C. and proceed to record evidence of the parties to determine which party was in possession of the property in dispute prior to its dispossession

Initiation of criminal prosecution under section 448, P.P.C;

Sections 441 to 448 deals with criminal trespass when a person(s) enters into or upon property in the possession another with intend to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “Criminal Trespass”. The punishment of criminal trespass is one-year imprisonment and fine.

Special Remedy under Illegal dispossession Act, 2005;

The Illegal dispossession Act, 2005 has been specially enacted to discourage the land grabbers and to protect right of owner and lawful occupant against illegal and unauthorized occupation. Under this Act, speedy, effective and easy relief has been provided to the owner as well as the lawful occupant of the property.

Choice to avail any one of them or all other remedies.

If the law provides more than one remedy to the aggrieved person. Then it is his choice to avail any one of them or all other remedies. No bar or restriction can be placed upon the claimant or the aggrieved person to approach different forums at the same time to avail respective remedies.

NOTE

This information provided in the article do not constitute legal advice and are not intended by the author.

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The question of inheritance is of complicated nature and people of subcontinent either misunderstood the concept of inheritance or they simply do not want to share the property. Our religion is very simple and it also a code of life based upon the principals of sharia and if we obey by them our lives would be simple and without complications.

The matters of inheritance are of utmost care and delicacy and one who is responsible for the distribution must be vigilant about the distribution of shares as Allah declares that

“He who usurp the inheritance right of others will burn in hell.”

The inheritance rights in Pakistan are mostly governed by combination of civil, Islamic and customary laws and traditions. Civil laws such as transfer of property act, Contract Act etc. are used to govern ownership and transfer of property and inheritance rights are enforced under Sharia Laws.

However, it is something very strange and unfortunate that we despite living in a Islamic country and claiming to be a Islamic society still try to usurp inheritance rights of other legal heirs specially sisters and daughters. In most the cases, the legal heirs like daughters, sisters, mothers and any even male members amongst the legal heirs does not claim their respective shares from the inherited property left by the deceased and after their death, the chapter of distribution of properties, thinks to be closed as many argue that the right to claim vanishes with the death of the successor in interest and they have to avail it during their lifetime and if they do not avail it they relinquish it.

This argument was settled in the case of Faqir Ahmed Khan (Deceased) Vs Riaz Ahmed and others 2020 SCMR 346 it is decided by the bench that the right of an heir to claim inheritance did not dissipate with his death as upon his death, it passed on to his heirs and so on and so forth. If a Muslim heir had not received his share in his lifetime in the property of his father or mother to which he is entitled the same right stood transferred to his heirs.

The argument that if a Muslim did not claim his or her share from the property of his deceased father or mother does that right dissipate with his death or not. To answer this it is very important to understand the basic principles of inheritance in Islamic jurisprudence which clearly states that when a Muslim dies his property or other assets becomes the matter of inheritance and the right of inheritance of the legal heirs of the said deceased opens and it shall not be at rest until each and every one of them receives its share. “Allah command you as regards to your children’s inheritance; to the male a portion equal to that of two female” Quran (4:11) and if someone has not received or claimed inherited share in his lifetime his share in the property to which he was entitled under sharia and he died then the same right stands transferred to his or her heirs. Death cannot prevent a rightful heir to claim his share in the inheritance of his predecessor to which predecessor was entitled under the provisions of Muslim personal law.

The right of inheritance in Muslim personal law or sharia is a continuing one and it cannot be stopped or considered to be diminished with the death of any legal heir it simply devolved to his legal heirs. Furthermore, factum of inheritance and the devolution thereof is always automatic and instantaneous as it was held in 1999MLD 703.  It is also worth noting here that in 2016 an inheritance matter was duly disposed of by the Supreme Court which was titled as Noor Jahan case, in the said case the bench observed that “A sister, to claim her rightful inheritance, was compelled to go to court and suffered long years of agony. However, before [she] could get what was rightfully hers, she too departed from this world… A quarter of century has elapsed since the death of Haji Sahraney (the deceased father). Such a state of affairs, to say the least, is not unfortunate.” The right of inheritance is a continuous right and it is like a river flowing from top to bottom and it is also proven by Sharia and the law of the land.

NOTE

This information provided in the article do not constitute legal advice and are not intended by the author.

The Lawyers (Law Firm)

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Website: thelawyers.pk/