ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Revision Application No. S-23 of 2012

 

 [Syed Najamuddin Shah & 3 others v. Divisional Forest Officer, Nawabshah & 4 Others]

 

Applicants                           :           Syed Najamuddin Shah & 3 others       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. 49/2001 (new F.C. Suit No. 47/2001) the Applicants/Plaintiffs prayed (a) for a declaration of their title to agricultural land as against the Forest Department, and (b) for an injunction to restrain the Forest Department from dispossessing them from such land. The learned Senior Civil Judge Moro decreed the suit by judgment and decree dated 24-11-2007 to the extent of prayer (a) for part of the land. On the appeal of the Forest Department (Civil Appeal No. 16/2008), 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 Plaintiffs of the suit.

 

2.         Learned counsel for the Applicants 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 Plaintiffs 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 Plaintiffs was that they were in possession of agricultural land in Deh Mithiani No.1 situated in the katcha area in District Naushahro Feroze, granted to their ancestors by the Government on the basis of “darya khurdi right”. 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 Plaintiffs had not produced in evidence any letter of grant of land to them or their ancestors by the Government against darya khurdi right.  

 

6.         Per the Forest Department, the land in the Plaintiffs’ 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 Plaintiffs’ contention that there was no evidence that the land in their possession was part of Mithiani Forest. But then, it was not the case of the Plaintiffs 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 Plaintiffs’ case was essentially that the land in thier possession did not encroach upon or fall within the boundaries of the Mithiani Forest, or in other words, that the land in their possession was within the boundaries of Deh Mithiani No.1, 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 Plaintiffs or their ancestors were granted land on the basis of darya khurdi right, and if so, whether the Plaintiffs have encroached on any part of the Mithiani Forest. Thus the impugned judgment and decree passed in Civil Appeal No. 16/2008 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).