Ahmadullah and others Vs Govt. etc

q JI'DGMENT SHEET PESHAWan trftCH COURT, MINGORA BENCH

(DAR-UL-QAZA), SWAT. B

JUDICIAL DEPARTMBNT

Civil Reviqion Petition No. 672-P12006

JUDG MENT

Date of hearing. ..... 1 1 .12.20t7.......

Petitioners: (Atlrnadullah and others) through Attorney Respondents:(Govt of NWFP through Secretary Forest and others) by Mr. Azim Khan Advocate and Mr. Rahim Shah, Assistant A.G for official Respondents.

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MUHAMMAD NASIR MAHFOOZ, J:- Through this single Judgment I shall dispose of instant revision peti tion alongwith Civil Revision No. 673- Pl2006 titled "

Khaliu otlrers", under section 115 of Civil Procedure Code, 1908 (*CPC') read with paragraph 10 sub 8 of Sharee Nizam-e-Adal Regulation, 2009 against the judgment and decree dated 20.02.2006, passed by the learned Additional District Judge/',lzafr Zil\a Qazi, Buner, whereby, appeal of respondents was accepted and the judgment and decree dated 15.12.2004, of the leamed trial court was set aside.

2 Brief and essential facts leading to the present petition are that, respondent No.1 to 4/plaintiffs filed a suit for declaration and permanent

{ injunction agaiqst the petitioners/defendants which was contested by the petitioners/defendants by submitting their written statements. After framing of

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issues evidencd of both the parties were recorded and after hearing both the parties, the suit of the respondents/plalntiffs was dismissed by the leamed trial court vide judgment and decree dated 15.t2.2004 Aggrieved from the said order, the respondents No I to 4lplaintiffs preferred an appeal before the learned Additional District Judgellzafr Zilla Qazi, Buner, who allowed the appeal and set aside the judgrnent and decree of the learned trial court and i decreed the suit of the

re spondents/plalnti ff vide judgment and order dated 20.02.2006, hence this petition.

a J Valuable arguments of the worthy

counsel for thd parties were heard and available record carefully perused.

4 This revision petition is pending from the year 2006 for the last 11 years. On23.10.2017, the case was adjourned on payment of cost of Rs.

5000/- with the direction to petitioners to procure attendance of their counsel for hearing. On 09.11 .2017, the payment of cost was waived off by learned counsel for respondents as the leamed

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v -:t counsel for petitioners was available to argue the case but having partially argued he could not conclude his arguments and the case was adjourned

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for today for remaining arguments, but learned counsel for petitioners is again absent without any application for adjournment, therefore, special attorney for oners was directed to argue the case himself but he expressed his inability and so learned Assistant A .G for the official respondents and learned coqnsel for private respondents argued the case in detailed length.

5 Perusal of the instant case file reveals that official respondents Forest Department filed a suit for permanont injunction regarding suit property measuring 2310 kanals and I I marlas comprising khasra as mentioned in the plaint, that consists of fore so petitioners/defendants have no right to claim Ownership of the suit property, they %::".ffi':::-;##;'"1 official respondbnts was accepted. Learned appellate Court has arri[.ed at the final conclusion after discussing the evidence produced during trial.

6 There is no denial in this fact that the suit property consist of forest and no claim as to

ownership coultl be laid by any private person, as

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the instant suit ,Was instituted in the year 2001, when Forest Act, 1927, was in the field and was not yet repealed by Forest Ordinance, 2002. Under section 29 of the ibid Act, the Provincial Government is empowered to dec lare any forest land or waste land which is not included in a reserve forest but which is the property o[ Govemment or over which the Government ha$ proprietary rights, or to the whole or any part of the forest produce of which is Government is pntitled by notification in the Official Gazette. Under sub section 2 thereof the forest land and waste lands comprised in any such notification shall be called B protected forest. In the whole area of Swat, all the forest is protected forest and no part of it has been declared as reserved forest. Under section 29 of the Forest Ordinance, 2002, the same powers as mentioned in the ibid Act, vests in the i

Provincial Government and under section 120 of the Ordinance, the Forest Act, 1927, has been repealed.

% Schedule I of Sections 2(46), 26(l)(t), 30(1)(a), l

33(2)(e), 36(3 X d), 44(c), 48(l), 56(3) of the Ordinance, provides list of protected trees when found in reserved forest, protected forest and l

protected wastq lands and for levy of duty. The

Forest Act, has been extended to provincially Administered Trib al Area (PATA) by regulation II of 1974, on 20105.1974 and vide notification dated 20.12.1975, Provincial Government declared all forest land as state land. Section 50 of Khyber Pakhtunkhwa Land Revenue Act, 1967, provides for presumption as to ownership of forest, queries and waste land. Under sub section 3 the presumption created by sub Sectron I may be rebutted and under

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sub section 4 until the presumption is so rebutted, the forest land, produce or interest shall be held to belong to Government. Forest Ordinance, 2002, is extended to PATA on 16.04.2009 vide Regulation I of 2009

7 In the instant case, petitioners had also filed a civil srjit bearing No. l3}ll instituted on 19.01 .1994, which was dismissed by learned trial court on 15.12 7 004 and their appeal was dismissed

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on 20.02.2006. The subject matter of both the civil /4 suits are the same khasra numbers. Petitioners had challenged the entries prepared during settlement and claim ownership of the suit property wherein evidence was and finally decided. In the heading of plaint, petitioners have also challenged an exparte passed in favour of some private

Y respondents which was upheld by this court vide

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order dated 14.I 0.1987 passed in Civil Revision No.

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381 of 1986. Though the question of title has not been discussed in detail by this court as the court was seized of 4 time barred application for setting aside exparte order and thus the exparte decree was maintained. The law expressly provides that the ownership of and forest land etc would vest in the Provincial so any claim by any

private person in violation of the relevant law could not hold the fiield unless rebutted in any material particulars and irot by mere oral evidence.

8.The quintessential law declared by the august Supremq Court of Pakistan on section 29 of i

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the Forest Act, 1927, is 2000 SCMR page 548,

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titled "Maior iAzam Khan Afandi Vs. Deputv i

Commissioiner Swat and others", relevant para is reproduced below, as in case the petitioners had produced any documentary proof of their title the notification under section 29 could not have benefited the official respohdents.

"Oh the other hand the Forest Department merely relied on a general notification issued on 12.12.1975 under section 29 of the Forest Act, 1927;

whereby, all the Forests in Kalam were declared as 6oProtected Forest".

Holvever, mere issuance of notification would not divest the real owners of the

3 Fotest Land of their proprietary rights. This is admitted position that before the notiification the Government was neither the owner of the property in question nort it had over claimed proprietary rights in this land. It is also admitted poiition that no inquiry as envisaged un( Ler sub-clause (3) of section 29 of the Foriest Act, was conducted in the matter totlscertain and determine the rights of the private persons who could be the pla lntiffs in this case".

9 In view of my findings above, I hold that the judgr:{ent and decree passed by learned appellate Court do not require any interference by this court in instant revision petitions, therefore, the judgment and decrees are maintained and the revision petiti ofls are dismissed with no order as to costs

Dt. 11.12.2017.

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(sanaullah) (SB)Hon'ble Mr,.Justice Muhammad Nasir Mahfooz.

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