2022 PLP 635 (YLR)

ALI BAIG, J.

Through the instant civil revision petition under section 115, C.P.C., the petitioners/ defendants have assailed the impugned judgment/decree dated 15.03.2019 passed by the learned Additional District Judge, Gilgit in C.F.A. No. 15/2018 whereby the learned 1st Appellate Court has partially allowed the civil 1st appeal of the present respondents/plaintiffs by setting aside the judgment/decree dated 11.12.2017 passed by the learned Civil Judge 1st Class No.1 Gilgit.

2. Succinctly facts giving rise to filing of the instant civil revision petition as per record are that the present respondents/plaintiffs (herein after called as respondents) instituted a suit for declaration and permanent injunction against the petitioners/defendants (herein after called as petitioners) in the trial Court asserting therein that they being residents of Naltar Bala and Pain/ concessionisits are entitled to get damaged/dead fallen trees according to Wajib-ul-Arz of the area and they have preferential right over other persons, whereas the respondents are bent upon to give dead fallen trees to other influential persons against the laws and rights of the respondents. The respondents have further averred in the plaint that during construction of Naltar road, number of trees have been cut down/removed and said trees also come within the definition of dead fallen/damaged trees, therefore they are also entitled to get the said trees in accordance with Wajib-ul-Arz of the locality.

4. The present petitioners/defendants contested the suit by filing their joint written statement in the trial Court raising certain legal objections and repudiating the averments of plaint. On the basis of divergent pleadings of the parties the learned trial Court framed as many as 5 issues which are as under:-- i. Whether the plaintiff have a cause of action? OPP ii. Whether the suit of plaintiffs is within time? OPP iii. Whether the plaintiffs are entitled to get the dead fallen tree wood without any prior permission from the forest as per wajibul arz? OPP iv. Whether only the defendant No.1 is entitled to get the fallen wood without any prior permission? OPD v. Relief?

5. After framing of the above said five issues the parties produced their oral and documentary evidence in the trial Court in support of their respective claim. On conclusion of trial, the learned trial Court after hearing of final arguments on behalf of both the parties had dismissed the suit of the present respondents vide judgment/decree dated 11.12.2017.

6. Feeling aggrieved and dissatisfied with the judgment/decree passed by the trial Court, the present respondents had filed a civil 1st appeal in the Court of the learned Additional District Judge Gilgit which was partly allowed by the learned 1st Appellate Court declaring the respondents/plaintiffs to be entitled to get dead fallen/damaged trees which died naturally or damaged due to act of God, vide the impugned judgment/decree dated 15.3.2019, hence this revision petition.

7. The learned Additional Advocate General appearing on behalf of the petitioners contended that the impugned judgment/decree passed by the learned 1st Appellate Court is based on conjectures, suppositions and arbitrary, therefore the impugned judgment/decree passed by the learned 1st Appellate Court is not maintainable and liable to be set aside. The learned Additional Advocate General further argued that the impugned judgment/decree passed by the learned Additional District Judge Gilgit is result of misreading and non reading of evidence of the parties. The learned Addl. A.G. further argued that Naltar Forest is a protected Forest which falls within the domain of Forest Department and natives of Naltar cannot get dead fallen trees without permission of Forest Department, thus the impugned judgment/decree passed by the learned 1st Appellate Court is not sustainable in the eye of law which may be set aside.

8. On the other hand the learned counsel for respondents supported the impugned judgment/decree passed by the learned 1st Appellate Court by contending that the learned 1st Appellate Court has rightly passed the impugned judgment/ decree in favour of the respondents after proper evaluation of oral and documentary evidence of the parties, thus the instant revision petition filed by the present petitioners against the impugned judgment/ decree passed by the learned 1st Appellate Court being meritless is not maintainable and liable to be dismissed.

9. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the record with their able assistance.

10. Admittedly the respondents are permanent residents/natives of Naltar valley. According to Rule 3 of Northern Areas Forest Rules, 1983, the natives/ residents of locality are entitled to get dead fallen dry wood. The relevant Rules reads as under:--

3. Cutting and removal of trees, etc:- (1) Fallen dry wood and brush wood may be cut and removed by the concessionisits at any time for their own personal use and not for sale or barter, but no "reserved" trees, however young, may be cut except as provide is sub-rules (2), (3) and (4) of rule 4. (2) Standing trees and wood of any kind except Pinus wallichiana (Kall), Abies Webbiana (Fir), and Picen Somi_thini (Spruce) may be taken by any concessionisits as may be required for his agricultural implements, free of charge and no license need be applied for in this behalf but information must be given to the beat-guard within twenty-four hours of felling of a trees. (3) If the Divisional Forest Officer consider that a forest any species is being felled in such a manner as to endanger the existence of that species, he may, with the sanction of the Conservator of Forests, restrict the number of trees of that species to be felled and may direct that license shall be obtained for felling any such trees. (4) Standing trees and wood of any kind except Pinus wallichiana (Kall), Abies Webbiana (Fir), and Picea Smithiana (Spruce) may be taken by all person free of charge and without license for graves and for cremation of dead bodies: Provided that the Divisional Forest Officer may restrict this right:-- (a) With the previous approval of the Conservator of Forests, within such areas as may be specified by him in this behalf; and (b) To the concessionisits only. (5) The village head-man shall conduct each felling under sub-rules (4) and shall report it, within twenty-four hours of such falling, to the nearest Forest Officer.

11. From bare reading of above said provisions it appears that the present respondents are entitled to get dead fallen wood/trees from Naltar Forest. Moreover, according to entries of Wajib-ul-Arz of the locality the petitioners are also entitled to get dead fallen/damaged trees from the disputed Forest.

12. Perusal of record transpires that the respondents have proved their claim by adducing reliable and cogent oral and documentary evidence in the trial Court, whereas the petitioners have failed to adduce any independent oral and documentary evidence to rebut the claim of the respondents. The learned 1st appellate Court has rightly decreed the suit partly in favour of the respondents as there is neither misreading or non reading of evidence nor any misapplication of law. The learned 1st appellate Court has given sound reasons and justifications while declaring respondents entitled to get dead fallen trees/damaged trees of Naltar Forest.

13. For what has been discussed above this revision petition being bereft of any merit is dismissed accordingly. File. SA/165/GB Petition dismissed.