Province Of Punjab etc. vs Afzaal Saeed etc.

Stereo. HCJDA 38 Judgment Sheet

IN THE LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

JUDICIAL DEPARTMENT

Civil Revision No.998-LD of 2016

Province of Punjab etc.

Versus Afzaal Saeed etc.

JUDGMENT

Date of Hearing:- 18.02.2026.

Petitioners by:- Rai Mazhar Hussain Kharal, AAG. Respondents by:- Sh. Muhammad Rafiq Goreja, Advocate.

Ch. Muhammad Iqbal, J:- Through this Civil Revision, the petitioners have challenged the validity of judgment & decree dated 12.12.2012, passed by the learned Civil Judge, Lodhran who decreed the suit for declaration filed by the respondents and also assailed the judgment & decree dated 12.10.2015, passed by the learned District Judge, Lodhran who dismissed the appeal of the petitioners.

2.Brief facts of the case as narrated in the plaint are that the respondents/plaintiffs filed a suit for declaration against the petitioners/defendants with the contentions that they are owners in possession of the disputed trees as described in Para No.1 of the plaint existing around outlet No.22995/R and No.22982/R of Mouza Sumra as well as on the side of National Highway from mile No.50 to 51 whereas the petitioners / defendants have no concern with the said suit trees, as such they may be

restrained from cutting/removing or auctioning the disputed trees. Further contended that the trees which had already been cut may not be handed over to the Forest Department who are going to auction the said trees.

Petitioners/defendants filed contesting written statement.

Out of the divergent pleadings of the parties, issues were framed and evidence was recorded. The trial court vide judgment & decree dated 12.12.2012 decreed the suit of the respondents. The appeal of the petitioners was also dismissed by the appellate court vide judgment & decree dated 12.10.2015. Hence, this Civil Revision.

3.Arguments heard. Record perused.

4.Main controversy revolves upon issue No.4 which is reproduced as under:-

“4. Whether the trees under question were planted by the Forest Department and are the property of the department? OPD”

Afzaal Saeed (one of the plaintiffs) has appeared as PW1 who stated that the plaintiffs are owners of the land in Sumra Tehsil Lodhran. They are owners of the disputed trees which were cut by the petitioners/ defendants who are going to dispose of the same on the ground that forest department is owner of trees who has given the said trees on Sapurdari to them. The trees consist of Sheesham, acacia, Eucalyptus and Mulberry. The Forest Department is going to auction the same without any right. That National Highway, Multan Bahawalpur Road SECN5 is

passing upon his land and the trees are owned by them which were illegally cut down by the

defendants/petitioners on the basis of malafide. In cross examination, he deposed that:-

ڈنکیامزنیئےکدوونںارطافرکیکمشیشاوردیفسےےکدرتخرےھکوہےئ ںیہ۔دوونں اھکل ےک ارطاف یھب رکیک مشیش اور دیفسے ےک درتخ ےگل وہےئ ںیہ ےھجم اکےٹ ےئگ دراتخن ےک ربمنز اک ملع ہن ےہ۔۔۔۔۔ےھجم ملع ہن ےہ ہک دروتخں ےک ربمن دبتلی وہےت رےتہ ںیہ۔۔۔۔ہمکحم یک رطف ےس دراتخ ن یکاٹکیئاکملعہنےہ۔۔۔۔۔ڈنیلرویوین ڈاپیرٹنمٹےسمہےنیھبکدحربداری ےک رقبی درتخ22 ہن رکایئ ےہ ویکہکن تیکلم انتمزہع ہن یھت۔ ۔۔۔۔رقتابی ہمکحم الگنجت ےن اکٹ ےک رےھک وہےئ ںیہ۔ الینیم ےک ابرے ںیم ےھجم ملع ہن ےہ۔۔۔۔۔امزیئاوراھکلرپوموجددروتخںرپہمکحمےکربمنےگلوہےئںیہ۔ Rao Lal Khan Sahib appeared as PW2, who narrated almost similar facts. In rebuttal evidence, Afzaal Saeed (one of the plaintiffs) again appeared as PW3 who in his statement stated that:-

اھکل دتموعہی یھب امہری ارایض یتیکلم ںیم ےس زگر راہ ےھ۔ وج ہک رساکری ہن ےھاوردراتخنیھبامہرییجنتیکلمںیمہنےہ۔

5.Conversely, Shaukat Hussain Bhutta (Range Forest Officer) has appeared as DW1 who stated that trees are situated on road beet Basti Malook to Adam Wain Road Mile No.50 to 51 and the said trees were planted about 30/35 years ago and same were numbered accordingly by the Forest Department. When trees were planted at that time none of the private party raised any objection, thus the Forest Department is owner of the said trees. That the Khaal Committee made water management in which the

plaintiff is Khewatdar and said Khaal committee cut down as many as 17 trees and after knowledge, Forest Department raided at the dera of the plaintiffs and found said cut trees lying therein and plaintiffs have admitted that trees are belonged to government and they showed readiness to pay fine. All the trees were taken over and given on Sapurdari and their amount was deposited in the government treasury. Khaal committee paid fine of the cut trees. The possession of the recovered trees was handed over to the officials and same were sent for auction to the Multan office. The suit is baseless and liable to be dismissed. In cross examination, he deposed that National Highway Authority had given permission to forest department about 30/35 years ago for plantation.

Shaukat Hussain (Range Forest Officer) appeared as DW2 who has stated that trees are planted on road about 30/35 years ago which are owned by the government and the plaintiffs have no concern with these trees. Plaintiffs constructed wall alongwith road and the trees are situated outside wall of the plaintiffs and also situated on the land of Highway. The said trees are situated on the edge of the road which were owned by the government.

6.Record shows that the respondents/plaintiffs have admitted that trees were allotted numbers by the government and in this regard, master enumeration register (Ex.D4) was produced in evidence. There is no

proof of ownership produced by the

respondents/plaintiffs in this regard. Admittedly, the respondents did not file any application for demarcation of their land. There is no evidence brought on record by the respondents regarding ownership rather they admitted that:- ن دوونں اھکل وگرٹنمن ےک وظنمر دشہ ںیہ۔ دوونں اھکل ذموکر ہ ڈنکی ی امئرا رپ واعق ںیہ۔ اھکل وک دوونں ارطاف دیفسے رکیک اور مشیش ےک درتخ ےگل وہےئ ںیہ۔ دوونں اھکل ےک آاغز ےس ااتتخم کت دوونں اجبن درتخ ےگل وہےئںیہ۔

The respondents/plaintiffs neither produced any oral as well as documentary evidence regarding their ownership and in support of their assertions made in the plaint.

7.Further, under Section 29 of the Forest Act, 1927, the provincial government has jurisdiction to notify / declare any area as ‘protected forest’ and under the aforementioned provision, the Government of West Pakistan, Agriculture Department issued notification dated 25.09.1961 whereby the land/area alongside the road has been declared as “protected forest”. For ready reference, aforesaid notification is reproduced as under:

GOVERNMENT OF WEST PAKISTAN AGRICULTURE

DEPARTMENT

Dated Lahore, the 25th Sept, 1961

NOTIFICATION

No. Agri.SOFT-III/VIII-2-295/61.

In suppression of notification No SOA(X)F&A/58/42(26)(ADIII)/58, dated the 26th Dec, 1958 relating to Jagha-Peshawar Grand Trunk Road, and notification NO. F&ASOXI(A) (F)VIII-2-110/59 dated 9th June 1959 and NO. F&FSOAII(V)VI-121/59 dated the 20 July 1959, relating to Mianwali District, the Governor of West Pakistan , in exercise of the powers conferred by section 29 of the Forest Act 1927 and all other powers enabling him in this behalf, is pleased to declare all

the roads and roadside lands under the control of Provincial Govt. in West Pakistan as defined below to be “Protected Forest” and the provisions of chapter IV of the said Forest Act to be applicable to them:

1.Road includes all the metalled or un-metalled roads under the control of Provincial Government of West Pakistan and all works, embankments structures and inspection bungalows.

2.Roadside lands includes strips of land acquired by the Government of West Pakistan along the road and demarcated or indicated at site by the boundary pillars.

No. Agri.SOFFT-III/VIII-2-295/61. Whereas by notification NO Agri- SOFTIII/VIII-2- 295/61 dated the 25th Sept.1961, all the roads and roadside lands in West Pakistan have been declared to be protected forest under section 29 of the Forest Act, 1927. Now, therefore, Govt. of West Pakistan in exercise of the powers conferred by 30 of the said act is pleased in suppression of Notifications (X)F&A/58/42(26)(ADIII)/58 dated the 26th Dec, 1958 , NO F&A(A)(Ft) VIII-2-110/59 dated the 9th June, 1959 and NO. F&F SOAII(V) VI-121/59 dated the 20 July 1959. a) To declare all trees within these lands to be reserved from the date of publication of this notification.

b) To prohibit from the same date the quarrying of stones, burning of lime or charcoal or the collection of subject to any manufacturing process or removal of forests produce any such forest and the breaking up or clearing of land for cultivation, buildings or for any other purpose in any except with the permission of the Divisional Forest Officer concerned. No. Agri.SOFT-III/VIII-2-295/61. Whereas Govt. Notification. Agri.SOFT-III/VIII-2- 295/61 dated the 25th Sept, 1961, the roads and roadside lands in West Pakistan have been declared to be protected forest under chapter IV of the Forest Act 1927.

Now, therefore, the Governor of West Pakistan in exercise of powers conferred under section 32 of the said Act, is pleased in suppression of notification NO SOA(X) F&A/58/42(26)(ADIII)/58 the 26th Dec, 1958 NOF&A. SOXI(A)(Ft)VIII-2-116/59 dated the 9th June, 1959and NO F&F. SOAII(V)(Ft)VIII-2-121/59 dated the 20 July 1959 to prohibit in these forests from the date of publication of this notification. a) The cutting, sawing conversion and removal of trees for timber and the collection, manufacture and removal of forest produce.

b) The cutting of grass and pasturing of cattle in such, and c) Hunting, shooting, fishing, poisoning water set traps, except with the permission in writing of the Divisional Forest Officer concerned.

By order of the Governor of West Pakistan Sd/- Khuda Buksh Secretary to Govt. West Pakistan Agriculture Department

NO Agri. SOFT. III/VIII-2-295/61 dated Lahore, 25th Sept, 1961 Copy forwarded to the Chief Conservator of Forest, West Pakistan (and others) w.r.t his memorandum NO 118-WPG/R dated 3.8.61 Under Policy Notification dated 11.02.2020 (The Punjab Forest Policy, 2019) the trees existing on both sides of highway, railway lines and Khaal are in the ownership of

the government. In this regard, the relevant portion of said policy notification is reproduced as under:- 2.6 Linear Plantation.

“Linear plantation refers to an area where tree plantation is present in shape of straight rows. In addition to the compact forest area, the department also manages linear plantations along provincial highways and canals. In 1961, a notification was issued declaring the right of way along the roads under the administrative control of Highway Department, as protected forest. At present the right of way of 11,680 km of provincial highway is being managed by the Forest Department. In 1994, the canal side plantations present on either side of major canals, branches and distributaries were transferred to forest department by the irrigation department. The total length of canalside plantation with Forest Department in 32,640 km. Likewise, the linear plantation along 2,987 km along rail side is also looked after by the department. The plantation along all types of linear plantation is carried out by the department through its development and non-development budget.

Thus there is no cavil and cudgel to declare that the trees in question belong to the Forest Department which maintain a lawful right to utilize or auction the same.

8.Further, record shows that Exh.P1 to Exh.P14 were produced on behalf of the respondents by their counsel in his statement whereas it is mandatory requirement of law that documents relied upon should be produced in the evidence by party in its own statement so that the adverse party may have a fair opportunity to cross-examine the same, as such the documents produced by the respondents’ counsel lack intrinsic value and such documents can validly be excluded from consideration.

Reliance is placed on the case titled Mst. Akhtar Sultana Vs. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC 715). Similar view has been reiterated by the Hon’ble Supreme Court of Pakistan in its latest judgment cited as Rustam & Others Vs. Jehangir (deceased) through LRs. (2023 SCMR 730) wherein it is held as under:-

“7. As regards the other two documents i.e. mutation No.1836 (Exh.D-9) and mutation No.1837 (Exh.D-8), it is suffice to say that according to principle settled by this Court in the cases reported as Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996), Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604), Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172) the document should be produced in the evidence by the party itself and a fair opportunity should be given to the opposite party to cross-examine the same, as such, the said two documents produced by the defendants counsel in his statement could not be taken into consideration.”

(emphasis supplied)

9.Respondents /plaintiffs have failed to prove their case through trustworthy oral as well as documentary evidence as such the findings of both the Courts below on issue No.4 being based on misreading and non- reading of evidence as well as against the record are hereby reversed and the said issue is decided in favour of the petitioners/defendants and against the respondents/plaintiffs.

10.As the decisions of the lower fora suffer from blatant misreading and non-reading of the evidence as well as mis-application of law, as such the same are not

sustainable in the eyes of law and are liable to be set- aside and this Court is well within jurisdiction under section 115 CPC to interfere with illegal and perverse concurrent findings of the lower fora. Reliance is placed on the cases titled as Nazim-ud-Din & Others Vs. Sheikh Zia-Ul-Qamar & Others (2016 SCMR 24).

11.In view of above, this Civil Revision is allowed.

Judgment & decree dated 12.12.2012, passed by the learned Civil Judge, Lodhran and judgment & decree dated 12.10.2015, passed by the learned District Judge, Lodhran are hereby set aside and suit for declaration filed by the respondents/plaintiffs is hereby dismissed. No order as to costs.

(CH. MUHAMMAD IQBAL)

JUDGE

Approved for reporting.

JUDGE

Shahzad Mahmood