IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

 

Civil Revision Appln.          :           Shafique Ahmed Kumbhar vs.

No. S- 05 of 2017                             Province of Sindh & others.

Civil Revision Appln.          :           Asif Ali Jatoi vs.

No. S- 06 of 2017                             Province of Sindh & others.

Civil Revision Appln.          :           Niaz Hussain Jatoi vs.

No. S- 09 of 2017                             Province of Sindh & others.

Civil Revision Appln.          :           Sajid Ali Soomro vs.

No. S- 10 of 2017                             Province of Sindh & others.

Civil Revision Appln.          :           Nisar Ahmed Jatoi vs.

No. S- 11 of 2017                             Province of Sindh & others.

Civil Revision Appln.          :           Irfan Ali Soomro vs.

No. S- 12 of 2017                             Province of Sindh & others.

 

For the Applicants               :           Mr. Ebrahim Saifuddin, Advocate

Mr. Ajmair Ali Bhutto, Advocate

 

For the Respondents          :           Mr. Abdul Hamid Bhurgri

Additional Advocate General

Mr. Abdul Waris Bhutto

Assistant Advocate General Sindh

Mr. Mukhtiar Ali

District Forest Officer Dadu

 

Date of hearing                    :           27.05.2024

 

Date of order                         :           27.05.2024

 

ORDER

 

Agha Faisal, J.         The applicants had filed suits for declaration of title in respect of immovable property, in facts and circumstances jointly stated to be common inter se. The suits were dismissed, however, a prima facie declaration of title was rendered in favour of the defendants, present respondents; notwithstanding the absence of any counterclaim before the trial court. The appeals were said to have been dismissed in a manifest mechanical and perfunctory manner, hence, these revisions.

 

            The applicants claim that the respective judgments were plainly dissonant with the evidence; amounted to an exercise of jurisdiction not vested by law; failure to exercise jurisdiction so vested; and an apparent exercise of jurisdiction illegally and with material irregularity.

 

            More surprisingly, even the respondents have filed applications per Order XLI rule 27 CPC in each revision; on the premise that unless the additional evidence is considered the lis cannot be adjudicated[1].

 

            These revisions are submitted to involve common facts and circumstances, remained listed conjointly and per joint request shall be determined vide this common order.

 

2.            Per joint submission, the record of Civil Revision Application 06 of 2017 was descriptive and illustrative of all revisions under scrutiny, hence, was relied upon primarily by the respective learned counsel during the course of arguments. The record of other revisions, especially Civil Revision Application 05 of 2017, was also adverted to in support of and / or to controvert respective submissions.

 

3.            Briefly stated, the applicants filed suits for declaration of title to immovable property, however, the same were dismissed, in almost identical judgments, with the declaration, in the manifest absence of any counterclaim, that the land is forest land and belonged to the respondents. The trial court rendered its declaration without ever having been assisted with any notification of any land having been declared as forest land. However, reliance was placed on a mere proposal, which in any event could not be demonstrated to include land anywhere near that which was claimed by the applicants. The appellate court predicated its dismissal of appeals on virtually identical judgments, reproducing the record and arguments etc and concluding mechanically in no more than a couple of pages that everything had been rightly decided by the trial court.

 

4.            It was the applicants’ case that the trial court judgments were entirely  indefensible, inter alia, as a declaration of title was given in favour of respondents without any foundation in fact or law; no notification reserving forest land was ever placed there before; the notification relied on was a mere proposal and in any event pertained to land of the left bank of the Indus River and certainly did not have any discernible nexus with the applicants’ case; certain photocopies were sought to be adduced by the respondents and the same were taken on record under objection, however, reliance was unduly placed thereupon without the objection ever having been determined; a report of the area Mukhtiarkar and entries by the respondents themselves in the revenue record demonstrated that the applicants’ land was outside the remit of the notification relied upon the respondents; and the appellate court rendered its judgments in a perfunctory manner manifestly devoid of any exercise of jurisdiction, hence, prima facie dissonant with Order 41 Rule 31 C.P.C.

 

5.            The respondents sought dismissal of the revisions predicated on the arguments that the applicants had failed to demonstrate their title; the evidence led before the trial court was not mentioned in the respective plaints; subsequent notification reserving land was issued, however, not seen by the respective courts; the Mukhtiarkar report and the entry by the respondents themselves could not be looked into as the same were not agitated by the applicants before the trial court; no reference to Order 41 Rule 31 C.P.C  was contained in the memorandum of revision; even if the claim of the forest department fails the Government would have title to the land per Article 172 of the Constitution; and that this Court could not interfere with concurrent findings. Applications were preferred in each revision, per Order XLI Rule 27 CPC, seeking for evidence to be placed on record, not seen by either the trial court or the appellate court, imperative for determination of the entire lis.

 

6.            Heard and perused. It appears that the respective parties are in concert with the plea that unless additional evidence, supplemental to that considered by the trial court, is considered the controversy is incapable of effectual adjudication. This Court remains cognizant that the ambit of its jurisdiction is circumscribed by section 115 CPC[2], hence, it is for this Court to determine whether the judgments impugned could be sustained on the anvil thereof.

 

7.            The law in application before the Court is the Indian Forest Act 1878 (“Act”). Section 4 thereof provisions for a proposal by the Local Government for declaring forest land while specifying the remit thereof. Section 19 of the Act is required to be exercised for notifying forest land reserved. Admittedly, the trial court judgments render a declaration of title in favour of the respondents, notwithstanding the tenability thereof, on the basis of a section 4 notification[3] and in the manifest absence of any reference to any section 19 notification whatsoever.

 

8.            Notwithstanding the weightage to be attributed to the notification under scrutiny, it is also demonstrated that the metes and bounds of the proposed forest land, therein defined, falls miles short of the applicants’ land. It is observed with trepidation that the said notification plainly mentions a proposal with respect to Naushahro Feroze, on the left bank of the Indus. Whereas, the trial court appears to have applied it to the applicants’ land in Mehar on the right bank of the Indus. The relevant notification finds mention in an entry[4] made by the respondents in the revenue record of Kandiaro (Naushahro Feroze), augmenting the observation supra. The said entry determines the remit of the proposal for the forest land to be bounded by Wahur to the north. Wahur is south of Mehar, hence, reliance on a forest reservation proposal to take effect south of Wahur could not be justified to apply way north thereof.

 

9.            There is a Mukhtiarkar report dated 16.12.2019, rendered upon direction of the respondents by a functionary thereof, that clearly stipulates that the notification[5] pertains to Naushahro Feroze and not to Mehar, where the applicants claim title to land.

 

10.         The only other pivot of the trial court judgments is reliance upon an entry[6] in the revenue record. It appears that the only evidence of this entry is an unsigned copy taken on record with objection[7]; the same never having been determined. The deposition of the Area Tapedar, an officer of the respondents, shows that the entry is not available in the revenue record[8].

 

11.         While admitting that a section 4 notification, relied upon by the trial court, merely contains a proposal, the respondents seek to place additional evidence on record in the form of a purported notification dated 5th June 1908 per section 19 of the Act. The veracity thereof is disputed by the applicants’ learned counsel and attention is drawn to the written reply filed by the Range Forest Officer in Revision Application 05 of 2017, submitted through the Assistant Advocate General on 22.09.2017, whereby yet another manifestation of the same instrument is demonstrated to be dated 4th May 1907. It is unclear as to which instrument is authentic, if any.

 

12.         The section 4 notification proposes to reserve forest land of roughly 4,500 acres. The applications submitted by the respondents per Order XLI Rul2 27 contain a map that shows the land to be 7,580 acres. Finally, a map annexed with the written reply filed by the Range Forest Officer in Revision Application 05 of 2017, submitted through the Assistant Advocate General on 22.09.2017, shows the land to be 12,890 acres. The glaring irregularity also remains to be explained. It is imperative to mention that all three documents under reference were duly admitted by the learned Additional Advocate General.

 

13.         The Court agrees with the learned Additional Advocate General that the claim of the applicants has to stand on its own feet and not be rested on any deficiency in the respondents’ title. While this proposition is sound, however, the trial court has not simply dismissed a claim but unwarrantedly given a contra declaration. His argument that the land may vest with the Government per Article 172 of the Constitution, ownerless property, also augurs no benefit to the respondents’ case as it could be construed as a tacit admission to suggest the respondents’ claim being untenable.

 

14.         While this Court has faithfully recorded the respective submissions, the conclusive determination in respect thereof is the prerogative of the trial court and the same is not apparent from the respective trial court judgments. A perusal of each of the trial court judgments under scrutiny demonstrates a boiler plate approach and the matter fared no better before the appellate court, which rendered judgments merely reproducing the record, arguments and the narrative and determining the solitary question in a perfunctory manner; whether the trial court had decided the issues properly (once again distinctly common in each of the judgments). Respectfully, the appellate judgments fall short of the standard set in statute per Order XLI Rule 31 CPC, as interpreted by the Supreme Court in Pakistan Refinery vs. Barrett Hodgson & Others reported as 2019 SCMR 1726.

 

15.         It is neither party’s case that the controversy in the respective suits could be effectually adjudicated on the basis of the evidence relied upon in the trial court judgments. It is also not the case that the evidential vacuum was addressed or even identified by the appellate court. The respondents have never averred that a declaration of title could be issued in their favour in a suit filed there against devoid of any counterclaim. It is thus observed, with utmost respect, that the trial court and the appellate court appear to have erred in disregarding the evidence, or the lack thereof, and overriding interpretations of the law, while rendering the judgments impugned, hence, appear to inter alia have exercised jurisdiction with manifest material irregularity.

 

16.         Therefore, these revision applications are hereby allowed to the remit that the respective appellate court and trial court judgments, in each revision under scrutiny, are hereby set aside and the matter is remanded to the trial court for de novo determination in accordance with the law and without being influenced by any observation herein contained. The parties shall remain at liberty to seek the trial court’s permission to adduce any further evidence there before, including without limitation the evidence sought to be adduced by the respondents as sought vide their applications per Order XLI rule 27 CPC; in order to enable the Court to effectually and completely adjudicate / settle all questions involved.

 

It is expected that the trial court shall conduct and determine the respective suits expeditiously, preferably within three months from the date of receipt hereof. The office is instructed to place a copy of this judgment in each connected case.

 

 

 

                                                                                                            Judge


[1] As denoted vide orders dated 23.05.2024.

[2] Sec. 115. Revision.(1) The High Court may call for record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears

(a)       to have exercised a jurisdiction not vested in it by law, or

(b)       to have failed to exercise a jurisdiction so vested, or

(c)       to have acted in the exercise of its jurisdiction illegally or with material irregularity.

the High Court may make such order in the case as it think fit…

[3] Notification number 4541 dated 4th May 1907.

[4] Dated 17.12.2019.

[5] Notification number 4541 dated 4th May 1907.

[6] Entry 2 of 1993.

[7] As denoted from the deposition of the Range Forest Officer, page 211 of the Court file.

[8] Page 237, relevant 241, of the Court file.