Raja Fayya z Ahmed. J.--This Civil Appeal with the leave of this Court is directed against the judgment dated 28.2.2002 passed by the learned Single Judge in Chambers of the High Court of Balochistan, Quetta, whereby Civil Revision No, 282 of 1997 filed by the appellants has been dismissed.
2. The relevant facts of the case are that Respondents No, 1 to 12 filed a civil suit in the Court of Qazi Uthal at Hub for declaration, perpetual prohibitory and mandatory injunction against the appellants and the proforma Defendants Nos, 4 and 5 in respect of the suit land measuring 4,300 acres approximately, situated in Mouza Kharkara, Tehsil Sonmiani, District Lasbela described in the subject caption of the suit on the stated averments that the said respondents/plaintiffs are in possession of the suit property as owners since the time of their ancestors and have constructed pakka houses, shops, wells, pastures, drinking water tanks and comprising of graveyard, community hall besides 8 goths names whereof, have been given in Para No, 1 of the plaint with the population of more than 2,000 inhabitants. It was further contended that in the year 1914-15 some landed property out of the suit property was purchased in open auction by the grandfather of Respondents Nos, 10 to 11. from Mir Kamal Khan, the then erstwhile Wali-e-Riasat, Lasbela duly confirmed by the said Wali of the State and since then they have been in the physical possession of the said property.
According to case of the said respondents/plaintiffs, as set up in the plaint that in the year 1964-65 revenue settlement of the suit properties was carried out as a result whereof, the suit property comprising of Khasra Nos: mentioned in the caption of the suit were entered and attested in favour of the Provincial Government and ever since the respondents had been agitating against the abovesaid entries incorporated in favour of the Provincial Government seeking for correction of the questioned revenue entries, and, despite of the fact that the respondents/plaintiffs produced documentary evidence of having purchased the landed property in auction and are in possession of suit property; the grievance was not redressed, therefore, Respondent No, 12 filed revenue appeal before the then Extra Assistant Settlement Officer/Collector, Lasbela which was dismissed and against this order appeal was filed before the Commissioner, Karachi Division/appellate Authority who by means of the order dated 21.8.1969 remanded the case to the Collector, Lasbela; not disposed of till date. It was further stated in the plaint that in the year 1979, the Forest Department/Appellant No, 2 intended to establish 'farms' on the suit land against which at different times applications were submitted by the respondents/plaintiffs complaining that proposed farms site also included agricultural lands of the respondents and the cattle grazing grounds, moreover; their residential houses etc. are also likely to be affected, therefore, it was requested that the proposed site for establishing farms may be shifted to some other place. It was further contended in the suit that vide order dated 12.2.1977 the Collector, Lasbela allowed the application of the father of Respondents Nos, 1 and 2 (late Abdullah) for correction of Khata in respect of Khasra Nos, 61/1, 62/1, 70/2, 71/1, 63/2, 64/1, 76/1, 77/2, 53/2, 54/1, 55/1, 57/1, 58/2, 59/1 and 6Q/1, measuring 107 acres, 2 rods and 19 poles but the land comprising of Khasra Nos, 363,364, 360 and 464 was ordered to remain in the name of the Provincial Government, against which order late Abdullah filed appeal before the Commissioner, Kalat Division, and was accepted by means of which correction of entries in respect of the above mentioned 4 Khasra Nos, were directed to be made but late Abdullah on account of certain constraints failed to get the implementation of the appellate order in his favour. Subsequently the Deputy Commissioner/Collector, Lasbela vide his order dated 9.5.1984 cancelled/set aside the order regarding correction of the revenue entries on the ground of limitation recommending to the Commissioner, Kalat Division for transfer of the property covered by the abovesaid Khasra Nos: to be made in favour of the Forest Department, Government of Balochistan, after which, on having come to know about the abovesaid recommendation made by the Collector of the District, the father, of the respondents submitted an application dated 21.5.1984 seeking for correction of the revenue entries, stated to be still pending. In Para No, 6 of the plaint, it has been stated that in the year 1980 the entire suit property, comprising of the disputed Khasra Nos, measuring about 4,300 acres was transferred in favour of the Forest Department, Government of Balochistan, through the mutation sanctioned and attested in favour of the said department, which fact statedly came to the knowledge of the respondents in the year 1991, therefore, an application was submitted to the Deputy Commissioner, Lasbela for cancellation of the said mutation on the grounds that the respondents are the ancestral owners in possession of the suit property and a week before the institution of the suit when the Forest and the Environmental Protection Department, commenced surveying the lands for plantation of trees and wild through proforma defendants. On these material averments; relief for declaration of title of suit property, perpetual prohibitory and mandatory injunction were claimed.
3. The appellants/defendants in the suit resisted the suit on various grounds of law and facts by means of their separate written statements. Out. of pleadings of the parties, 6 issues were framed in addition to Issue No,7 relating to the relief.
4. The respondents/plaintiffs produced 7 witnesses in support of their case including documentary evidence, whereas; the appellants produced documentary evidence comprising of revenue record and the notification issued by the Government of West Pakistan. The learned trial Court on conclusion of the evidence of the parties and hearing them vide judgment and decree 5.3.1997 decreed the suit in favour of the respondents/plaintiffs which was assailed in appeal by the appellants before the learned Majlis-e-Shoora on 30.6.1997 barred by time. An application for condonation of delay was also filed. The learned Majlis-e-Shoora dismissed the appeal of the appellants solely on the ground of limitation vide judgment' and decree dated 22.7.1997, which has been maintained vide impugned judgment, accordingly the Civil Revision preferred by the appellants was dismissed however; simultaneously the learned Single Judge in the High Court also dilated upon the merits of the case and it was concluded that the appellants failed to rebut the evidence adduced by the respondents/plaintiffs at the trial and that the learned Additional A.G. even on merits could not point out any illegality or, irregularity committed by the Courts below, although; it was specifically observed in Para No, 8 of the impugned judgment that the case has not been decided on merits by the learned Majlis-e-Shoora.
5. Heard the learned Additional A.G. for the appellants. He submitted that the suit property measuring 4,300 acres approximately is a huge chunk of public property and admittedly as per case of the respondents/plaintiffs was entered and attested in favour of the Provincial Government in the year 1964-65 during the revenue settlement of the area and Misal-e-Haqiat was prepared after thorough probe and enquiries made by the concerned revenue staff which was never questioned by the respondents or any other person except through the suit instituted for the first time in the year 1991 which landed property according to the respondents own showing was transferred by the Provincial Government in favour of the Forest Department, Government of Balochistan/Appellant No, 2 for the public purposes. It has further been pointed out by the learned Additional A.G. that the learned Qazi without properly adverting to the question of limitation in the light of the above stated admitted facts of the case in their true perspective and the law; decreed the suit in favour of the respondents, assailed in appeal before the learned Majlis-e-Shoora which non-suited the appellants on the ground of limitation, maintained vide impugned judgment.
According to the learned Additional A.G., since the first appeal was not decided on merits, therefore, except attending to the question of limitation, merits of the case were not required to have been dilated upon by the learned High Court and moreso; for the reason that such aspect of the case was specifically pointed out on behalf of the appellants during the hearing of revision petition.
It has been next argued that the lapses for whatever reason in preferring the appeal, beyond the prescribed period of limitation by the public functionaries in respect of the huge public property required to have been taken due notice of and the delay caused in the matter deserved to have been condoned as it eventually deprived the public of its property and not the Government and Forest department to whom it was finally transferred in the public interest which proceeded to utilize the same as such.
6. The arguments put forth on behalf of the appellants have been considered in the light of the impugned judgment gone through carefully with the assistance of learned Additional A,G. including the judgment passed by the learned Majlis-e-Shoora questioning the validity and the legality of the decree passed by the learned trial Court in favour of the respondents/plaintiffs. It is ant admitted feature of the case that the appeal filed by the appellants before the Majlis-e-Shoora was not decided on merits and such fact as evident from Para No, 8 of the impugned judgment was pointed out at time of the bearing of the revision petition before the learned High Court, yet the revision petition has been decided on merits and it was concluded that the appellants failed to rebut the evidence produced by the respondents in support of their claim by upholding the findings of facts recorded by the learned trial Court, which course obviously cannot be approved, nor the conclusion so arrived at on merits of the case can be allowed to sustain for the simple reason that the learned Majlis-e-Shoora did not dilate upon the merits of the case; nor decided the appeal, as such; except that mainly the appellants were non-suited on the ground of limitation for having filed the appeal beyond the prescribed period of limitation.
Admittedly, as a result of Settlement of the area carried out in the year 1964-65 the, suit property measuring 4300 acres approximately was finally recorded in favour of the Provincial Government in the Misal-e-Haqiat presumably after the required probe and inquires etc. which final attestation, of the revenue entries were not challenged by the respondents before a Court of law or the appropriate forum within the prescribed period of limitation. Subsequently, as per respondents own case, the same was transferred in favour of the Forest Department/ Appellant No, 2 for the public purposes. It was further alleged in Para No, 5 of the plaint that in the year 1977 the Collector, Lasbela accepted the application of the father of Respondents Nos, 1 and 2 (late Abdullah) for correction of the revenue entries in respect of land measuring 107 acres, 2 rods and 19 poles bearing Khasra Nos, mentioned in the said para of the plaint but the land comprising of Khasra Nos, 363, 364, 360 and 464 was ordered to remain in the name of the Provincial Government which order to such extent was assailed in appeal before the Commissioner, Kalat Division. This appeal was stated to have been accepted with the direction that correction of the revenue entries in respect of the above mentioned 4 Khasra Nos, be made but late Abdullah on account of certain constraints failed to get the implementation of the appellate order in his favour and subsequently, the Deputy Commissioner/Collector, Lasbela vide his order dated 9.5.1984 cancelled/set aside the order regarding correction of the revenue entries on the ground of limitation recommending to the commissioner, Kalat Division for transfer of the property covered by the abovesaid Khasra Nos, to be made in favour of the Forest Department, Government of Balochistan. It is' interesting to note that according to the respondents own case as setup in the plaint, the suit property was transferred in the year 1979 in favour of Forest Department and in the same breath it was alleged that vide order dated 9.m.19&4, the Collector of the District, cancelled the order regarding correction of the revenue entries and recommendations were made to the Commissioner, Kalat Division, for transfer of the land under the abovesaid 4 Khasra Nos, in favour of the Forest Department, whereas, the suit was instituted in the year 1991 out of which proceedings the present appeal has arisen.
7. Undisputedly, the respondents have lodged the claim in respect of the land measuring 4300 acres approximately recorded in favour of the Provincial Government in the year 1964-65 which being in nature of the public property was supposed to have been used, utilized and dealt with by the Provincial Government or its 'Departments to whom it was transferred in the year 1979 in the sole public interest being the custodian of the public property and likewise the public functionaries are supposed and required to act accordingly under the law and to defend any legal proceedings concerning the public property before any Court or forum effectively; preserve, protect, and defend the title, rights and interest of public property in accordance with the law which did not vest or belong to any of the public functionaries. It was the bounden duty of all the concerned to have acted and proceeded promptly and effectively to take appropriate steps and to pursue the available remedies against any proceedings, order or decree of a Court within the prescribed period of limitation. The serious lapses on the part of all the concerned in withholding the matter and not having filed the appeal before the learned Majlis-e-Shoora within the prescribed period of limitation and after dismissal of the revision petition by the learned High Court, even approached to this Court after a considerable delay of 320 days in filing CPLA speaks about the inaction, inefficiency or deliberate omission by all the concerned though being under legal obligation to have taken the prompt action in availing the legal remedies but not so done as above noted; cannot be ignored, yet; no, action in such behalf appears to have taken by the competent Authority against the delinquents. Due to the serious lapses and failure to discharge the legal duties promptly and within the prescribed period of limitation by all the concerned in the matter in view of the decree of the trial Court; of course no actual loss, damage or deprivation of rights has occurred to the public functionaries concerned in the matter, rather the Government and the Forest Department stands completely deprived of the public property solely meant to be used, utilized and dealt with in the public interest being a public property of which the Government and the Department through its functionaries are the custodian but decree of the trial Court was not assailed before Majlis-e-Shoora within the prescribed period of limitation and for such reason alone, appeal was dismissed, upheld by the learned High Court as well; consequently the Government stood divested of huge public property for being its custodian and thereby interests of the public stood completely jeopardized merely because of the grave omissions and inaction on the part of the concerned public functionaries which did not stop here, inasmuch as; the CPLA against the impugned judgment was filed after a considerable delay before this Court which acts and omissions have been Wren notice of in the larger public interest therefore, keeping all these factors in view and for doing complete justice, the delay in preferring the appeal before the learned Majlis-e-Shoora and having preferred CPLA before this Court much beyond the prescribed period of limitation is condoned. Consequently, the impugned judgment, the judgment and decree passed by the learned Majlis-e-Shoora, Khuzdar on 22.7.1997 in Civil Appeal No, 44 of 1997 are set aside. The appeal filed against the decree of the trial Court shall be deemed as pending before the learned Majlis-e-Shoora, which shall be decided after hearing the parties. There shall be no order as to costs.
For what has been observed and noted above, the competent Authority in the matter is required to proceed against all the concerned delinquent officers and the public functionaries by taking disciplinary action under the appropriate law and rules for not having approached to the first appellate Court and this Court within the prescribed period of limitation and in accordance with law; within a period of one month from the date of receipt of this order, compliance whereof and the eventual final action that may be taken in the matter be-communicated to this Court for our perusal in Chambers through the Registrar of this Court. Copy of this Judgment and the Order be transmitted to the Chief Secretary, q the Secretary, Law Department, the Secretary Forests Department, Government of Balochistan and the Senior Member, Board of Revenue, Balochistan at Quetta for appropriate action to be taken in the matter as above ordered.