P L D 2004 Peshawar 80 (PLP)

4. It was also argued that as per statement of Bakht Jamal who appeared as P.W.1 the land in dispute was Serai land, therefore, its ownership could not be sold and the respondents' claim of purchasing the said land is wrong. The other witness examined by him namely Abdur Rehman (P.W.2) was his real brother. The said witness was even not aware of the correct boundaries of the property in dispute.

5. It was also argued that the suit property was situated in Compartment No.20 and had been declared as protected forest. The working plan and history file was placed on record as Exh.P.W.1/1 and 1/2. The learned trial Court had appreciated the evidence properly, but the learned Appellate Court has failed to appreciate the evidence in its true perspective.

6. It was also argued that the learned trial Court had appointed Local Commission who submitted its report which had been objected but the entire judgment of the Appellate Court is based on the said report, which is not sustainable.

7. It was also argued that Civil Revision No.561 of 2003 was hopelessly barred by time, hence deserves dismissal.

8. On the other hand Mr. Muhammad Asif, Advocate the learned counsel representing the respondents/legal representatives of Bakht Jamal in Civil Revision No. 123 of 1997 and petitioners in Civil Revision No.561 of 2003 argued that the boundaries of the property in dispute have undergone change with the efflux of time. If there was any minor difference in one of the boundaries, the property situated adjacent to the property in dispute has changed hands.

9. It was also argued that sale‑deed Exh.P.W.1/1 was registered document having been registered under NQ.686 on 15‑8‑1966 with the then authorities of Swat.

10. About the report of the Local Commission it was argued that the legal representatives of Bakht Jamal raised objections to the said report and so was done by the Government side but the learned Appellate Court did not accept the objections raised by the parties and accepted the report of the Commission and based its findings thereon which were not in accordance with the provisions of law. The legal representatives of Bakht Jamal were entitled to decree claimed for.

11. I have heard the learned counsel for the parties and perused the record.

12. The question that requires determination in this case is as to whether the property in dispute is protected forest or privately owned property of Bakht Jamal deceased. Answer to this question cannot be given at this stage because the provisions of Forests Act, 1927 were extended in 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 Forests 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 enquiry with regard to the nature and extent of rights of Government and of private persons. In the case in hand Bakht Jamal deceased claimed to be owner of the disputed property on the basis of registered Sale‑deed No.686 dated 15‑7‑1966 A Exh.P.W.1/1. He also claims to be in possession of the same since its purchase. There is nothing on record to indicate as to whether any enquiry was conducted by the officials of the Government to find out the rights of the Government (Forest and Environmental Department) vis‑a vis private persons (plaintiff) who as mentioned above, claimed to be the owner of disputed property on the basis of registered sale‑deed. 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 is 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 Forests Act, 1927: whereby all the forests in Kalam were declared as "Protected Forests". 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 ever claimed proprietary rights in this land. It is also admitted position that no inquiry as envisaged under sub‑clause (3) of section 29 of the Forests 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 the mere issuance of notification the Forest Department does not become owner was correct while the contrary view taken by the High Court is not well‑founded."

13. Keeping in view the fact that no enquiry whatsoever was conducted as required under subsection (3) of section 29 of the Forests 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 enquiry with regard to the rights of Government and of the legal representatives of Bakht Jamal over the property in dispute. The Provincial Government through Secretary, Forest and Environmental Department is, therefore, directed to hold enquiry through impartial official preferably through District Revenue Officer/Collector, Swat. The Enquiry Officer shall submit his report within a period of two months positively.

14. Since the Courts below have failed to appreciate the above I discussed legal position, therefore, I allow the revision petition in hand, set aside their judgments and decrees and remand the case back to the learned trial Court with the direction to allow the parties to adduce further evidence in support of their respective claims and on receipt of the report from the Enquiry. Officer, decide the suit strictly in accordance with law, preferably within a period of six months. Parties are directed to appear before the learned trial Court on 22‑1‑2004. The office is directed to remit the record back to the said Court before the date fixed. There shall be no order as to costs. H.B.T./32/P Case remanded.