2018 PLP 250 (YLRN)

ZULFIQAR AHMAD KHAN, J.

This Revision has been filed against the concurrent findings of the Courts below, where the F.C. Suit No.131 of 2007, filed by the respondents against the applicants for declaration, and permanent injunction, was decreed and the appeal preferred against the said judgment was also dismissed.

2. The facts as narrated are that S.No. 12 Deh Sekhat, Taluka Matiari "Dhandh Rechal" as per old record of the office of Director Settlement Survey and Land Record Hyderabad was government land. The said land was under harap of plaintiff prior to 1997 and in the year 1997, the plaintiffs applied for allotment of the said land when each respondent/ plaintiff was allotted 16 acres of land. After the allotment, sketches of each respondent's area was prepared by the concerned tapedar and allotment was issued in the open katcheri. However, prior to the holding of the open katcheri, the respondents moved an application before Additional Commissioner Hyderabad for the grant of land in their possession on permanent basis, which were considered and initial grant was made for 10 years, whereafter it was to be granted to the respondents permanently. The respondents also contended that they had paid "Malkana" for 9 years and they were paying land revenue and were in peaceful possession of the subject land, and that respondents had spent huge amounts on the improvement and development of the lands. It was alleged that the Forest Department in order to oblige certain big zamindars was bent upon to dispossess the respondents and were issuing threats though they have no concern with the suit land, therefore, they filed F.C. Suit No.131/2007.

3. Learned AAG submitted that the judgments of the Courts below are against the law, facts, equity and natural justice; that both the Courts below while passing the impugned judgments have failed to appreciate the evidence properly produced on record by the applicants and ignored the material facts that the Additional Deputy Commissioner Settlement and Collector Hyderabad was not competent to allot the reserved forest land to the respondents. The total area of suit land is 2066 acres, which is entered in record of rights as forest land vide entry No. 1 dated 03.03.2000 and the respondents are encroachers and they have raised un-authorized cultivation on the suit lands, as such on this score alone the impugned judgments are liable to be set aside. He further stated that both the Courts below failed to appreciate that the unsurveyed No. 12 of Deh Belo Sekhat Taluka Matiari Richhal Dhandh is Government forest property and existed between survey Nos. 10 and 11 of Belo Sekhat and is part of C. Nos. 25, 26 and 27 of Sekhat Forest. The other relatives of respondent have previously claimed U.A. survey Nos. 10 and 11 of same deh by manipulation of facts, and managed by writing in the name of father in Survey Bandi by playing fraud, mischief and by making bogus entry in Survey Bandi and after detailed enquiry, the Director Settlement Survey and Land Records Hyderabad vide his order No. A.E./221 dated 25.1.2007 did not allow their request and deleted their names from Survey Bandi as the respondents had produced same Survey Bandi, which has already been rejected as such on this account the impugned judgments are liable to be set aside. Learned AAG next submitted that both the Courts below failed to appreciate that the respondents have no locus standi or legal character to file suit and that the respondents made application before the Revenue Department with mala fide intention to grab the Government forest land on bogus and false grounds, as the land in question belongs to the Forest Department and the respondents failed to produce any documentary evidence except some receipts, which are in fact the penalty on raising un-authorized cultivations on Government land and not with regard to ownership. He further submitted that the Courts below failed to consider the Notification dated 24.08.1893, produced by the applicants by which the suit land was declared as reserved for forest, thus the same could not have been transferred/allotted to anyone else. The applicants have also produced the said notification along with a written statement and on this account, the impugned judgments are liable to be set aside and that both the Courts below also failed to appreciate that the respondents have failed to challenge the said notification before any competent authority therefore, both the lower Courts committed illegality and failed to consider the point regarding maintainability of the suit, as the respondents have failed to challenge the above notification, and without challenging the same sought declaration on the basis of harapship. Thus the findings of both the Courts below on the above point are void as such liable to be set aside. Lastly, the learned AAG submitted that the impugned judgments are not sustainable under law thus are liable to be set aside.

4. On the other hand, learned counsel for the respondents contended that admittedly respondents were in possession of the suit land which was allotted to them by Revenue Authorities and that order was not challenged by the Forest Department before any competent forum and thereafter amount (i.e. government fees and taxes) have been paid by the respondent, therefore, their possession cannot be treated as illegal. She further contended that though written statement has been filed but the applicants have failed to appear in the witness box, as such, written statement could neither be exhibited in evidence without examining the person having filed the same, nor treated the same as substantive piece of evidence except that same amounts to an admission of respondents' plea. In this connection she relied upon latest cases reported in PLD 2010 SC 604 and 2008 CLC 1472.

5. Heard the counsel, reviewed the record.

6. In the case at hand, no doubt the respondents led their evidence whereas the applicants chosen to stay away from the Court and lastly the learned DDA closed their side. The respondents case is based upon the allotment orders as well as the Survey Bandi as well as the Malkana, allegedly paid by them. As regards the ownership of the land is concerned, originally this land was Government property. The respondent No.1 Atta Muhammad examined himself as Ex. 26 and deposed that the suit land has been in their possession on harap since last 15/16 years and about 10 years back it was allotted to them on harap basis, but here the crucial point involved in the case at hand is that whether the land in question was a Reserved Forest land or a Government land and was available to be allotted to the occupants/sitting haris. The learned AAG in support of his arguments has produced an attested copy of the Notification dated 17.12.1878, issued by the Revenue Department, whereby while exercising powers under section 34 of the Indian Forest Act, 1878, the Governor in Council declared the lands situated in different parts of the Province of Sindh including the chunk of land situated in Sekhat, near Khebrani Forest and Dhand Richhal (subject matter land) as reserved forest. Further, by Sindh Official Gazette dated 19.02.1916, subject land was also declared as Reserved and Protected Forest of the Province of Sindh. Further, the fact remains that the respondents have not been able to displace the authenticity of the Notification published in the Government of Bombay Gazette in 1878 (photocopy of the same was placed before the Court), obviously the 1878 Act was in force when the Notification was issued. Counsel for the respondents was unable to show that the Notification lost its effect upon repeal of the parent statute and section 6 of the General Clauses Act also protects it. Even otherwise there is nothing to show that the aforesaid Notification was ever rescinded or recalled, thus the legal position would be that the land in question was never available for disposal for cultivation purposes by the Government with or without consideration. Moreover, evidence of possession is hardly of any value to the respondents. Before the trial Court the case of the applicant was that the Un-surveyed No.12 claimed by the respondents is a Government Forest Land and exists between Survey Nos.10 and 11 of Belo (Forest) Sekhat and is part of C. Nos.25, 26 and 27 of Sekhat Forest. Earlier, the relatives of the respondents by manipulation of facts, playing fraud and mischief and writing the name of their father in Survey Bandi, have claimed U.A. Survey Nos.10 and 11 of the same Deh and after a detailed enquiry, the Director Settlement Survey and Land Records Hyderabad vide his Order No.A.E/221 dated 25.01.2007, did not entertain the request of the said individuals and deleted their names from the said Survey Bandi and now the respondents are claiming ownership on the subject matter land by producing the same Survey Bandi, which has already been rejected. The case of the respondents is that they were allotted the subject matter land and they have paid Malkana. Perusal of the copy of Village Form No.I-A, produced by the learned AAG, shows that the land admeasuring 2066 acres out of which UN No.12, bounded with Khebrani Forest, Deh Buchaki, Dhand Richhal and River Indus, allegedly allotted to the respondents, was actually a Forest Land, hence the same was not available for allotment or leasing out to anyone else thus the Additional Deputy Commissioner (Settlement) and Collector Hyderabad was not competent to allot the same in favour of the respondents. 6(sic) This revision has been preferred against concurrent findings of the Court below, however, perusal of the judgments impugned shows that both the Courts below while rendering these judgments have committed illegality and material irregularity as well as committed grave injustice while ignoring the factual aspects of the case, as discussed above, and relying on the oral as well as the documentary evidence brought on record by the respondents without any material support, accepted their claims, which in view of the documents produced by the learned AAG was not permissible. The fact is that the suit land is declared as forest land by Notification dated 17.12.1878, which was upheld by the Apex Court in Civil Petition No.172-K of 2006 vide order dated 27.10.2008. 6(sic) In the given circumstances, by short order dated 06.04.2018, after hearing both the parties counsel the instant revision was allowed and the judgments passed by the Courts below were set aside, and above are the reasons for the same. SA/P-14/Sindh Revision allowed.