2004 PLP 296 (CLC)

5. It was also `argued that the learned trial Court had appointed three Local Commissioners to, inspect the property in dispute and one of them, namely Muhammad Javed, Advocate in his report admitted that there were 20 trees of Kayal and there were black and white trees also on tile spot which proved that the property in dispute was Khuwar .

6. It was also argued that the sale-deed Exh.P.WA/l was not proved because neither any official of the office of Sub-Registrar was examined nor any marginal witness of the said deed was produced to prove tile same.

7. It was also argued that the boundaries of the property in dispute mentioned in the sale-deed Exh.P.W.I/1 do not tally with Aks-e-Shajra Kishtwar EXh.P.W.I/3 prepared by the Patwari Halqa, in that, on the northern and southern sides, protected forests have been shown whereas in the sale-deed Exh.P. W. l / 1 the property owned by individual has been shown.

8. On the other hand, Mr. Fida Gul, the learned counsel representing the respondent/plaintiff, argued that the suit was once decreed in favour of the respondent/plaintiff vide judgment and decree, dated 18-9-1997. The petitioners /defendants filed appeal against the said judgment and decree and the learned Appellate Court, while accepting the appeal, remanded the case back to the learned trial Court. On receipt of case file the learned trial Court again appointed Local Commissioner and after considering the report of the Local Commissioner as well as the evidence adduced by the. parties, again decreed the suit in favour of the respondent/ plaintiff.

9. It was also argued that all the three Local Commissioners appointed for spot inspection confirmed the possession of the respondent/plaintiff over the property in dispute and his possession was also admitted by them. There were no trees grown in the disputed property, on the basis of which the suit property could be declared as protected forest.

10. The learned Courts below, it was argued, have rightly evidence available on record and there is no misreading of evidence warranting interference by this Court.

11. It was further argued that no inquiry as required under subsection (3) of section 29 of the Forest Act, 1927, before issuing Notification whereby the property in. dispute which was owned by the respondent/plaintiff was declared as protected forest.

12. I have heard the arguments of the learned counsel for the parties and perused the record of the case.

13. The claim of the 'respondent/plaintiff was that he was owner of land measuring 42 Kanals comprising Khasra No.1443 situated at Raqba Kala Karin Tehsil Khuwaza. Khela . District Swat, on the basis of registered sale-deed No.252, dated 23-2-1981 (EXh.P.W.I/1) and was in possession of the same since its purchase. He was cultivating the suit property and was utilizing its usufructs whereas the claim of the petitioners/defendants was that the property in dispute was protected forest and was in possession of the Environment (Forest) Department. The learned trial Court in order to ascertain the factual position on the spot had-appointed three Local Commissioners. Muqam Shah, Advocate was the first Local Commissioner appointed to see as to what was the nature of the property and who was in possession thereof. He submitted his report on 10-7-1997. Then Saeedur Rehman was appointed as Local Commissioner and after the remand of case by the learned Appellate' Court, the learned trial Court appointed Muhammad Javed, Advocate as Local Commissioner who submitted their reports. The Patwari Halqa had also placed on record voluminous Revenue Record.

14. The question that needs determination in this case is as to whether the property in dispute is "protected forest" or private property owned by the respondent/plaintiff. The answer to this question cannot be given at this stage because the provisions of Forest Act, 1927 were extended to PATA Area on 29-5-1974. vide N.-W.F.P. Regulation No.11 of 1974. As per subsection (3) of section 29 of the Forest Act, 1927, which is reproduced hereunder for convenience:-- "No such notification shall be made unless the nature and extent of the rights of Government and of private persons in over the forest land or, waste land comprised therein have been inquired into and recorded at a survey or settlement, or in such other manner as the Provincial Government thinks sufficient. Every Such record shall be presumed to be correct until the contrary is proved.," , Notification is to be made after holding inquiry with regard to the nature and extent of rights of Government and of private persons. In the case in hand, there is no indication as to whether any inquiry was conducted to find out the rights of the Government vis-a-vis private person who claimed to be owner on the basis of registered sale-deed. A similar question came up for hearing before the august Supreme Court of Pakistan in Maj. Azam Khan Affandi v. D.C., Swat and 7 others, 2000 SCMR 548 in which it was held:-- "On 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 "Protected. Forest". 'However, mere issuance of notification would not divest the real owners of the Forest Land of their proprietary rights. This is admitted position that before the notification the Government, was neither the owner of the property in question nor it had over claimed proprietary rights in this land. It is also admitted position that no inquiry as envisaged under subsection (3) of section 29 of the Forest Act, was conducted in the matter to ascertain and determine the rights of the private persons who could be the plaintiffs in this case. The decision of the trial Court that by mere issuance of Notification the Forest Department does not become owner was correct while the contrary view taken by the High Curt is not well-founded. " Keeping in view the, fact that no inquiry whatsoever was conducted as required under subsection (3) of section 29 of the Forest Act, 1927 and the dictum laid down by the august Supreme Court of Pakistan quoted above, I am of the view that still there is no hurdle in the way of Provincial Government to hold inquiry with regard to the rights of petitioners vis-a-vis rights of the respondent/plaintiff over the property in dispute. The Provincial Government through the Secretary Environment/Forest is, therefore, directed to hold inquiry through impartial official or agency preferably through the District Revenue Officer/Collector, Swat who shall associate the respondent/plaintiff also in the said inquiry. The Enquiry Officer shall submit his report within a, period of two months positively.

15. The learned Appellate Court failed to appreciate the above discussed legal position. I, therefore, allow the revision petition in hand set aside the judgment and decree-passed by the learned Appellate Court and remand the case back to the said Court with directions to decide the appeal in the light of inquiry report submitted to, it by the Provincial Government. The appeal shall be decided within a period of three months on receipt of inquiry report. Parties are directed to appear before the concerned Court on 11-12-2003. The office is directed to remit the record of the case to the said Court before the date fixed. The Registrar of this Court shall send a copy of this judgment to the Secretary to Government of N.-.W.F.P., Environment (Forest) Department. Peshawar for compliance.- There shall be no order as to costs. S.A.K./992/P Revision accepted.