Abuse of Jointly-Owned Land Laws of Pakistan


Jamil Mogul

After the creation of Pakistan in August 1947, which was carved out of the land of British India, the laws of the erstwhile British Raj (British Rule) remained in force. In Pakistan’s legal history, there was never an intention to begin the statute book anew. The founder of Pakistan, M A Jinnah, had an agenda regarding the laws of Pakistan, to implement a legal system in accordance with the Islamic teachings/injunctions (i.e., Sharia), but his Islamic agenda was never fulfilled in his lifetime. However, his Islamic agenda did have a lasting impact on later Pakistani lawmakers who kept introducing Sharia as law.
Many of the British laws were adapted in Pakistan through the Adaptation Acts of 1947 and 1957, which laws are supposed to help, not hurt, its people. But these old, outdated British-inherited laws of Pakistan seem to have been abused, often hurting decent Pakistanis and even many good foreigners who are of Pakistani origin or Pakistani descent.
One area of such inherited British laws in Pakistan’s legal system is ownership/possession of land or real property, in which laws, as told by a well-reputed Pakistani judge, simply, while paraphrasing them, state that an owner of a jointly-owned property that is wholly occupied by the other co-owner(s) cannot claim the ownership or possession of his/her portion of the property until the property is partitioned for all the claimants. This partitioning prerequisite in the land laws bars a wronged claimant from filing a criminal complaint to the police or submitting a grievance-redressal petition to a judge against the usurper(s) of his/her property portion; and simultaneously, this prerequisite allows the usurper(s) to continue to freely, laughingly, and unfairly possess and practically and monetarily benefit from the wronged claimant’s property portion until there is a settlement or a property partition, which may take many years. (As an expression goes, property possession is nine-tenths of the law).
It is worthwhile to surmise that the old British land laws, which help an unscrupulous person abuse the laws while hurting the chances of success of an ethical person, were cleverly designed to benefit the rulers of British India more than their subjects as these land laws seem to have indicatively helped the British advance their self-interests and/or legally helped maintain their own forced occupation (possession) of the Indian Subcontinent.
Due to such old and outdated British-made land laws adapted by Pakistan, people who have been denied their rights to ownership or deprived of possessions of their family-owned real estate-agricultural land and/or residential or commercial buildings that are illegally occupied by their siblings or their other relatives or their friends or enemies or neighbours have not only been facing uphill and long court battles, but also have tremendously been suffering physically, emotionally, and/or financially. A simple procedural property matter becomes a disheartening, disappointing, demoralizing contested court matter with nightmares, often having long-drawn, seemingly never-ending, and mostly frivolous lawsuits and counter lawsuits while making the unscrupulous civil-case lawyers richer and richer and the wronged claimants poorer and poorer, if not bankrupt, who perseveringly continue to pursue their court battles often generation after generation to strive to have ownership and possession of the property they deserve.
Meanwhile, due to the abuse of outdated land laws and delayed justice, the usurpers continue to benefit uninterruptedly from the illegal possession of the usurped property.
For over 70 years or so, the parliamentarians-MNAs and MPAs–of Pakistan who often are lawyers seem to have been sleeping on the job for, oblivious to, willfully ignorant of, or knowingly avoiding this crucial, demoralizing, enduring issue caused by the outdated British land laws inherited by Pakistan. It may be surmised that updating these land laws may negatively impact the money-making schemes or drastically reduce the revenue streams of the parliamentarians’ own law firms or their law-practising colleagues or lawyer-friends.
However, for sake of wronged claimants of jointly-owned Pakistani properties, it is urgingly appealed to the Pakistani MNAs and MPAs that the outdated British land laws of Pakistan must be updated to deter usurpers of properties by allowing a wronged claimant of jointly-owned property, before its partition, to legally claim the ownership and/or possession, or demand compensation for use of his/her portion of the property and in case of noncooperation, to file a complaint to police to evict the usurper(s) from the property until the property is partitioned, or to request the police to investigate the claim and temporarily confiscate the property once its findings support the wronged claimant and then to send the property matter to court for a civil trial to help adjudicate upon the matter, which civil trial must not take any longer than a year.
Not updating for deterrence and fairness the old, outdated, abusable British-inherited land laws of Pakistan would be against human rights or akin to a crime against humanity, which includes millions of Pakistanis and foreigners of Pakistan origin or Pakistani descent.