ORDER SHEET
IN THE HIGH COURT
OF SINDH, BENCH AT SUKKUR
Revision Application No. S-22 of
2012
[Ghulam Mustafa
v. Divisional Forest Officer, Nawabshah & 4 Others]
Applicant : Ghulam Mustafa through Mr. Kalander Bakhsh M. Phulpoto, Advocate.
Respondents : Mr. Ahmed Ali Shahani, Assistant
Advocate General,
Sindh.
Date of hearings : 25-08-2020, 07-09-2020 &
21-09-2020
Date of order : 22-10-2020
O R D E R
Adnan Iqbal Chaudhry J. – By F.C. Suit No. 52/2001
(new F.C. Suit No. 48/2001) the Applicant/Plaintiff prayed (a) for a
declaration of his title to agricultural land as against the Forest Department,
and (b) for an injunction to restrain the Forest Department from dispossessing
him from such land. The learned Senior Civil Judge Moro decreed the suit by
judgment and decree dated 11-01-2008 to the extent of prayer (a). On the appeal
of the Forest Department (Civil Appeal No. 11/2008), the suit was dismissed by
the District Judge Naushahro Feroze by judgment and decree dated 20-12-2011 and
24-12-2001 respectively, on the ground that the jurisdiction of the civil court
to decide the matter was ousted by section 172 of the Sindh Land Revenue Act,
1967; hence this revision application by the Plaintiff of the suit.
2. Learned counsel for the Applicant submitted
that the appellate court erred in dismissing the suit for want of jurisdiction
as the suit was not for any matter covered by section 172 of the Sindh Land
Revenue Act, 1967. He submitted that the forest notification relied upon by the
Forest Department, though filed with the written statement, was never exhibited
in evidence, and thus the Forest Department had failed to prove that the suit
land was part of a reserve forest.
3. The learned AAG Sindh supporting the
impugned judgment submitted that in any case no document was produced by the
Plaintiff to prove title to the suit land; that even if the forest notification
was not exhibited, since it had been filed with the written statement, it could
nonetheless be examined by the Court to decide the matter as so held in Muhammad
Shoaib v. Jamila Khatoon (2015 YLR 1213).
4. Heard the learned counsel and perused
the record.
5. The case of the Plaintiff was that he
was in possession of agricultural land in Deh Mithiani No.2 situated in the
katcha area in District Naushahro Feroze, granted to his grandfather (Dawood) by
the Government of Sindh on the basis of “darya khurdi right”, and
succeeded to by the Plaintiff’s father, Talib, and then by the Plaintiff. It is
to be noted here that “darya khurdi right” means the right to hold “katcha
State land” in lieu of qabooli land that has been eroded or lost in
river action.[1] “Katcha
State land” means land located in between the flood protective bunds of River
Indus known as riverine katcha area.[2]
Under the erstwhile scheme[3]
for granting katcha State land, an applicant satisfying the Deputy
Commissioner of his darya khurdi right could be granted katcha
State land in the same Deh for agriculture purposes after proceedings held in common
assembly (jalsa-e-aam). However, the Plaintiff had not produced in
evidence any letter of grant of land to him or his forefathers by the
Government against darya khurdi right.
6. Per the Forest Department, the land in
the Plaintiff’s possession was part of a reserve forest (the Mithiani Forest) pursuant
to Notification No. 4568 dated 10-05-1909 issued under section 19 of the erstwhile
Indian Forest Act, 1878, which declared the following land with the following
boundaries as a reserve forest :
Survey No. |
Area |
Boundaries |
Unsurveyed Katcha |
Acres. |
North-Bhorti Forest. West-Keho Mithiani. South-Kaheo Deh Gijh East- Vado Dhoro, old bea of the
river Khuhawar village |
2317 |
||
Mithiani |
983 |
North-Bhorti Forest. West-River Indus. South-Kacho Deh Mithiani. East-Kacho Deh Khuwahar |
The
Indian Forest Act, 1878 was repealed by the Forest Act, 1927, however, notifications issued under the former
continued to hold the field by virtue of section 6 of the General Clauses Act,
1897.[4]
7. Though a copy of the forest
Notification dated 10-05-1909 was filed with the written statement and the notification
was cited by the Forest Department’s witness in his examination-in-chief, the
witness did not exhibit the same in evidence; and hence the Plaintiff’s
contention that there was no evidence that the land in his possession was part
of Mithiani Forest. But then, it was not the case of the Plaintiff that the
forest Notification dated 10-05-1909 or the Mithiani Forest did not exist, or
that the Mithiani Forest had subsequently been de-notified as a reserve forest.
The plaint had never been amended to challenge the forest Notification dated
10-05-1909. Thus, the Plaintiff’s case was essentially that the land in his
possession did not encroach upon or fall within the boundaries of the Mithiani
Forest, or in other words, that the land in his possession was within the
boundaries of Deh Mithiani No.2, which deh had been created after the forest
Notification dated 10-05-1909. In my view, such matter was covered by
sub-section (2)(i), (xiii) and (xxi) of section 172 of the Sindh Land Revenue
Act, 1967 which read as follows:
“Without
prejudice to the generality of the provisions of sub-section (1), a civil court
shall not exercise jurisdiction over any of the following matters, namely:-
(i) any
question as to the limits of any land which has been defined by a Revenue
Officer as land to which this Act does or does not apply;
(xiii) the formation of a deh or determination of
its boundaries;
(xxi) any
claim regarding boundaries fixed under any of the enactments hereby repealed or
any other law for the time being in force, or to set aside any order passed by
a competent officer under any such law with regard to boundary marks.”
8. Having seen that the question raised by
the suit was one of revenue boundaries covered by section 172 of the Sindh Land
Revenue Act, 1967, the jurisdiction to decide the same lay with the revenue
authorities who could best determine whether the Plaintiff or his forefathers
were granted land on the basis of darya khurdi right, and if so, whether
the Plaintiff has encroached on any part of the Mithiani Forest. Thus the impugned
judgment and decree passed in Civil Appeal No. 11/2008 dismissing the suit on
the ground of jurisdiction, does not call for interference. Resultantly, this
revision application is dismissed.
JUDGE
[1] The term “darya
khurdi right” is presently defined under Statement of Conditions issued
under sub-section (2) of section 10 of the Colonization & Disposal of
Government Lands (Sindh) Act, 1912 vide Notification No. SB-III/1-403/P/82/1997
dated 08-07-1997.
[2] Ibid.
[3] Statement of Conditions issued under sub-section (2) of section 10 of the Colonization & Disposal of Government Lands (Sindh) Act, 1912 vide Notification No. K.B.I/1/30/72/1413/2340 dated 27-03-1973, superseded by Notification No. SB-III/1-403/P/82/1997 dated 08-07-1997.
[4] Also observed by
the Supreme Court of Pakistan in an order dated 27-10-2008 passed in Civil
Petition No. 172-K of 2006 (Muhammad
Waris v. Chief Conservator of Forest, Sindh).