2020 PLP 727 (MLD)

WIQAR AHMAD, J.

My this order is directed to dispose of Civil Revision No. 1008-P of 2010 as well as connected Civil Revision No. 1565-P of 2010 as both these petitions out of the same impugned judgments and decrees of the learned two Courts below.

2. The plaintiffs had instituted a suit in representative capacity against defendants for declaration of their rights along with other residents of village Baghro District Dir to the effect that they along with the others inhabitants of the village Baghro had been the original owners of property in the said Mauza and therefore entitled to 1/3rd shares in the Royalty of the produce of forests known as Shalkho Tabai, Tabar Lusto and Zulamkot comprising of lot numbers 331/m, 422/m, 423/m and 424/m of forest compartments Nos. 14, 18, 26, 27(i), 27(ii), 28(ii), 29(i) and 29 (ii) situated within the boundaries of Mauza Baghro and that defendants Nos. 1 to 9 were not entitled to enter into a compromise with defendants Nos. 10 and 11, predecessor-in-interest of defendants Nos. 12 to 15 and predecessor-in-interest of defendants Nos. 41 and 42 for withdrawing the amount of Royalty on behalf of the plaintiffs and other co-owners of village Baghro and authorization granted to defendants Nos. 10 to 15 (hereinafter referred as the contractors) by defendants Nos. 16 to 40 and predecessor-in-interest of defendants Nos.41 and 42 beyond their entitlement and on behalf of the plaintiffs and other co-owners of the Mauza was without due authorization, illegal and ineffective upon their rights. In prayer "Bay" the plaintiffs have prayed for perpetual injunction for preventing payment of their shares of Royalty to anyone else and in prayer "Jim" mandatory injunction has been sought to the effect of directing respondents Nos. 1 to 9 to ensure return of the amount of Royalty received by defendants Nos. 10, 11 and predecessor-in-interest of defendants Nos. 12 to

15. In prayer "Daal" the plaintiffs have prayed for cancellation of the impugned agreements while in prayer "Ray", prayer for recovery of Rs. 20,000/- or whatever amount of Royalty was found to have been entitlement of the plaintiffs.

3. The plaintiffs have stated in their plaint that village Baghro was being inhibited by the people from the castes of Utmankhel, Atrafi and Kalootkhel, who had been the original owners of residential and agriculture properties in the village and co-owners to the extent of rights of Royalty payable from the produce of forests described above. That a few days before the institution of the plaint, the plaintiffs came to know that defendants Nos. 16 to 40 and predecessor-in-interest of defendants Nos. 41 and 42 by pretending themselves to be elders of the village Baghro had contracted with defendants Nos. 10, 11 and predecessor-in-interest of defendants Nos. 12 to 15 for receipt of Royalty, which rights had been sold to the latter group by the former without any authorization from the plaintiffs as well as other inhabitants of the village Baghro. In pursuance to the said unlawful agreements, official respondents Nos. 3 to 9 were stated to have identified the trees ripe for cutting by marking them and thereby authorizing the contractors for cutting the trees and receipt of the amount of Royalty on behalf of all the inhabitants of village Baghro on the dint of allegedly executed unlawful agreements.

4. Defendants were summoned, they have filed their separate written statements. Out of the divergent pleadings of the parties, issues were framed thereafter. Evidence was led by the parties and on conclusion of the proceedings in the case, suit was decreed in favour of the plaintiffs by the learned Civil Court vide judgment and decree dated 19.02.2009. Against the said judgment, three civil appeals were filed before the learned appellate Court, which were also dismissed. Both the judgments were thereafter impugned by the petitioners by filing civil revisions No. 1008-P and 1565-P of 2010.

5. Learned counsel for the petitioners (contractors) reiterated the facts of the case and thereafter submitted that the jurisdiction of this Court is barred by section 92 of the Forest Ordinance, 2002 (hereinafter referred as "Ordinance"). He further contended that the plaintiffs in the suit had failed to prove themselves as original owners of Mauza Baghro and therefore they had no entitlement in the amount of Royalty and the two Courts had wrongly granted judgments and decrees to the plaintiffs.

6. Learned counsel for the respondents Nos. 42 and 43, who were defendants Nos. 41 and 42 in the suit submitted that the property had been declared to be the ownership of Muhammad Shah Khan of Haya Serai in the report of "Dir-Swat Land Disputes Enquiry Commission" (hereinafter referred to as "Land Commission") and that jurisdiction of the civil Court is barred by Para No. 7 of the Martial Law Regulation No.

122. He further stated that the property was in-fact exclusive ownership of Muhammad Shah Khan of Haya Serai, predecessor-in-interest of the defendants Nos. 41 and 42 and that the plaintiffs had got no right in the same.

7. The learned counsel for the respondents Nos. 1 to 6 submitted that through cogent and confidence inspiring evidence the plaintiffs had proved themselves to be the original owners of Mauza Baghro and thereby entitled to the amount of Royalty to the extent of their proportional shares. He placed reliance on the judgments reported as 1994 SCMR 818, 2010 SCMR 5, 2000 CLC 567, 2008 CLC 1 and 2015 CLC 560 and contended that the question of facts had concurrently been settled by the learned two Courts below which were not open to interference of this Court in revisional jurisdiction as the petitioners could not show any illegality or perversity in the findings of the two Courts. He further added that the Forest Ordinance was extended to Malakand Division on 16.04.2009 by putting it in the Schedule of Shariah Nizam-e-Adl Regulation, 2009 at serial No.

53. He also contended that suit had been filed on 02.05.2001 and decided by the Civil Court on 19.02.2009 before the extension of the Ordinance to the Provincially Administered Tribal Areas (PATA) of Malakand Division. He further submitted that the Ordinance did not have any retrospective effect, therefore, same would not effect the decision rendered in the instant suit. He also asserted that the Ordinance only bars those suits where a person claims right of ownership in a forest and disputes the rights of the government involved in the same and in this respect he relied upon the provisions of section 5, 6 and 7 of the Ordinance.

8. The learned counsel for respondents Nos. 17 to 22, 23 to 25 and 31 to 33 also opposed the revision petitions and submitted that the petitioners have been original owners of the property in village Baghro and had been entitled to their proportional shares in the produce of forests along with his clients.

9. The learned Astt: A.G. stated that the dispute relates to payment of Royalty inter-se between the parties and that the official respondents have got no interests in the case, therefore, he would neither support nor oppose the civil revisions.

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

11. In order to prove their case the plaintiffs have produced six (6) PWs. PW-1 is the statement of Fazal Wadood, Office Assistant FDC, who produced the relevant record of the harvesting of forest which resulted into dispute between the parties. He was not cross-examined. PW-2 is the statement of Zafar Iqbal Stenographer in the office of DORE/D.C. Dir Upper, who produced the record regarding payment of Royalty and stated that the amount of Royalty was received by Lal Muhammad, Muhammad Rasool, Muhammad Wakil Khan and Muhammad Siraj vide various receipts, copies of which were exhibited as Ex.PW-1/1 to Ex. PW-1/19. The persons named above, were the contractors who had purchased the rights of Royalty from some of the defendants which transactions and the ensuing payment of the Royalty had been impugned by the plaintiffs through the instant suit. In cross-examination this witness stated that payments were made on the basis of power of attorneys. PW-3 is the statement of Gul Rasool plaintiff, who has stated in his statement inter alia that plaintiffs had been the original owners of residential and agricultural properties in the village who had been living therein from time immemorial and has also reasserted the facts as stated in the plaint. He was cross-examined at length but his testimony particularly in respect of the fact that they had been original owners could not be shattered. PW-4 was another witness produced by the plaintiffs who has also supported the stance of the plaintiffs as taken in the plaint. Same was the case with other witnesses of the plaintiffs namely Khaista Garan and Hameedullah.

12. The defendants then produced their evidence. DW-1 in his examination-in-chief has given the following narration in respect of the payment of the amount of Royalty; He has thus admitted that plaintiffs Nos. l and 3 were the nephews of defendant No. 21 while the plaintiff No. 2 is the son of defendant No.

21. He has however not admitted the entitlement of plaintiffs Nos.4, 5 and 6 and stated that they had been residing somewhere else. In cross-examination of the plaintiffs on the said witness he has stated that except Masoom Khan all the defendants belonging to village Baghro had given him power of attorneys. He further added that village Baghro was not only inhabited by three (3) castes but was inhabited by twelve (12) castes. Further ahead he stated that village Baghro was inhabited by about 5000 people from whom he had not been possessing any power of attorney. He has also stated that he could not give measurements of the properties owned by the people from whom he had obtained power of attorney. He has also stated that among the entire caste only defendants Nos. 16 to 40 had sold their rights of Royalty on the contractors. He further stated in his cross-examination that after receipt of the amount of Royalty by the representatives/elders it had further been distributed by them and that Mohtabar Khan and Sadbar Mula were their representatives, who had been appointed by about 500 people, but they had however not been given a power of attorney by all the inhabitants' of village Baghro. One Jafar Khan was examined as DW-2. He admitted in the start of his cross-examination that village Baghro was inhabited by three (3) castes namely Utmankhel, Atrafi and Kalootkhel. He added that there were other castes also who were relatively smaller in number. He has reiterated in his cross-examination further that the elders Sadbar and Hakeem Khan had been given authorization by all the defendants, however, other people of the village had not given them power of attorney. The other witnesses of the defendants had almost given a similar narration of facts.

13. The documentary evidence in the case in hand includes the Notification of the Land Commission, which was produced in evidence as Ex.DW-1/2. The entire Notification No. 10/16-SOTA-II/72-1522 dated 15.09.1972 was indicating the personal property of the Nawab of Dir Sir Shah Jehan Khan. At serial No. 178 of the said Notification the following description of the property was given; Land situated in ... (i) Nano Banda; (ii) Jangal Banda; (iii) Gera Banda;] excepting land at page No. 5 of the ] File No. 615-DCR]1615-DCR (iv) Banda Dando; ] (v) Banda Zulamkot; and (vi) Banda Tabar Lusto; (vii) Banda Shalkho; The said entry simply says that the property was situated in the above-mentioned villages and further description of the land has not been given therein. It is important to be noted that another Notification of the Commission has enumerated the State property and all the forests in Dir and Swat were held to be the property of the provincial government. The said Notification bears number 10/16-SOTA-11/72-1521 dated 15.09.1972. The word "land" should therefore be differentiated from the word "forests" which has nowhere been given to either the Ex-Rulers of the States of Swat or Dir by the Land Commission. Reliance in this respect is placed on the case of "Provincial Govt. of NWFP v. Mohammad Raziq and 13 others" reported as "2017 CLC 908". Land situated in seven (7) villages including the three (3) mentioned in the plaint has been held to be property of the Ruler of Dir but without any specification or measurement of the land. The forest has however never been declared to be the property of late Nawab and same has been the admitted position all along in the pleadings as well as evidence of the parties. Another important document which would also be relevant for the present discourse is the agreement deed entered into between the predecessor-in-interest of defendants Nos. 41 and 42 namely Muhammad Shah Khan of Haya Serai and the other defendants notable among whom was one Sadbar Mula and others. The said deed was produced in evidence as Ex-DW-1/5. In the said agreement the parties have conceded rights of each other on various chunks of land situated in and around of village Baghro as well as regarding the rights of Royalty in the forest. This deed shows that beside the former Rulers of Dir and their successor namely Muhammad Shah Khan of Haya Serai there had been other original owners of land in the village with whom the latter had entered into the compromise wherein through a settlement respective rights of the parties were recognized and thereafter through various power of attorneys the rights of Royalty were sold to the contractors by parties of this agreement, who are defendants in the suit and whose details have also been given in the facts above. It is also relevant to be mentioned here that defendants Nos. 41 and 42 had been proceeded ex-parte in the suit and they had not participated in the proceedings in the two Courts below. They had not even filed their written statement before the original Court, but since their learned counsel appeared before this Court and argued the case, therefore their arguments are addressed here in the interest of justice.

14. The evidence produced in the case bore testimony to the basic fact that the plaintiffs had been the original owners of village Baghro. The oral evidence of the plaintiffs produced in the said respect could not be shattered. The defendants in their evidence have largely admitted that the plaintiffs were members of the Utmankhel and Itrafi tribes who had been the original owners of the village Baghro. The defendants have neither given in their written statements the details that from where the entire tribe of plaintiffs had migrated and when had they inhabited the village Baghro nor had they led any evidence in respect of dilating upon the said details. When the plaintiffs were found to be the original owners of the village Baghro they were naturally entitled to their proportionate shares in the Royalty of the forest of the village Baghro described fully in the plaint. The two Courts below have therefore concurrently held the plaintiffs to be ancestral owners of the village Baghro and entitled to the Royalty in the forest described in the plaint. The said findings of the learned two Courts below were based on proper appreciation of evidence. I do not find any reason for interference in the concurrent findings of facts of the two Courts below in respect of the facts in issue in the suit. The said findings cannot be lightly interfered into by this Court in view of the law laid down by the Hon'ble Supreme Court of Pakistan in the case of "Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others" reported as "1994 SCMR 818" and in the case of "Muhammad Idress and others v. Muhammad Pervaiz and others" reported as "2010 SCMR 5". Reliance in this regard is also placed on the judgments reported as "2015 CLC 560, 2000 CLC 567 and 2008 CLC 1".

15. Now coming to the question of jurisdiction, it is important to be noted that the petitioners had been agitating the bar of jurisdiction contained in section 92 of the Ordinance. The Forest Ordinance was promulgated on 11.06.2002. Same was extended to PATA (Malakand Division) vide Notification No. SO (Judicial) HD 1-34/04 dated 24th July 2004 of the Government of Khyber Pakhtunkhwa Home and Tribal Affairs Department. Subsection (3) of section 1 of the Ordinance says that it shall come into force once and thus no retrospective effect has been given to the said Ordinance. Section 120 of the Ordinance provides for Repeals and Savings. Subsection (2) of the said section is relevant for the present discussion, which is reproduced for ready reference as under; (2) "Notwithstanding the repeal of the enactments mentioned above, any appointments made, orders passed, notifications issued, rules made, contracts entered into, proceedings commenced, rights acquired, liabilities incurred, penalties, rates, fees or charges levied, forfeitures made, things done or action taken under any of the provisions of the repealed enactments shall, so far as they are not inconsistent with the provisions of this Ordinance, be deemed to have been respectively made, passed, issued, entered into, commenced, respectively made, passed, entered into, commenced, acquired, incurred, done, taken or levied under this Ordinance." It has been provided that the promulgation of the law shall not effect the proceedings commenced and rights acquired or liability incurred. The suit had been instituted on 02.05.2001 and the judgment and decree of the learned Civil Court was returned therein on 09.02.2007. Thus, the promulgation of the Forest Ordinance shall not at all effect the proceedings in the instant suit. Reliance of the learned counsel for the petitioners on the case of "Provincial Government NWFP and others v. Muhammad Raziq and others" reported as "2017 CLC 908" was therefore, misplaced. The question as to whether a dispute regarding rights of Royalty between private individuals shall also go to the Forest Settlement Board established under section 5 of the Ordinance and jurisdiction of the civil Court would be barred under section 92 of the Ordinance, need not be dilating upon for the reason that the Forest Ordinance was otherwise not applicable to the proceedings in the instant case. Same is left to be adjudicated upon in other appropriate proceedings when the said question is directly required to be answered.

16. So far as the bar contained in Para 7 of the Martial Law Regulation No. 122 is concerned, the said bar of jurisdiction is not applicable in the instant case. The relevant Para of Regulation No. 122 is reproduced hereunder for ready reference; "

7. No Court shall call in question or permit to be called in question any action taken or order made under this Regulation." It has already been held that the property declared in the relevant part of the report of the Land Commission is not the one in respect of which the plaintiffs have made a prayer for Royalty. The "matter in issue" in the suit in hand, relates to Royalty and the subsequent transactions impugned in the case which took place after decades of the conclusion of the proceedings of the Land Commission and cannot be perceived to have been coming in the definition of "any question taken or order made under this Regulation". Therefore, the bar of jurisdiction, referred above is also not applicable in the case in hand.

17. The learned counsel for the respondents has also raised objection to the revision petition filed by Muhammad Siraj bearing No. 1565-P of 2010 as being barred by the law of limitation. The said revision petition is expressly barred by 56 days but since this Court had already admitted civil revision No. 1008-P of 2010 for regular hearing against the very judgment which had also been impugned in C.R. No. 1565-P of 2010, therefore, delay in filing the revision petition was condoned by making reliance on the judgment of the Hon'ble Supreme Court of Pakistan in the case of "Muhammad Ashraf and others v. United Bank Limited and others" reported as "2019 SCMR 1004" and both the revision petitions were taken up for adjudication on merits.

18. In view of what has been discussed above, both the revision petitions are found meritless and same are therefore dismissed. MH/26/P Revisions dismissed.