With the help of the 'instant petition the petitioners being plaintiffs have challenged the validity of the judgment delivered by the learned appellate Court dated 11.7.2006, whereby while dismissing their appeal the judgment and decree dated 25.5.2005 dismissing the suit with regard to the disputed property, has been upheld.
2. Precise facts of the case are that the petitioners in the capacity of plaintiffs filed a suit for declaration etc. with regard to the disputed property, measurement and description whereof is given, in the plaint, against the respondents (Forest Department), before the Court of Civil Judge/Illaqa Qazi Swat to the effect that they were owners of the suit property on the basis of a registered sale deed dated 6.12.1978 and the adverse entry in the revenue record pertaining to it as "protected forest" was ineffective upon them and the same was liable to be rectified.
3. Initially the vendor Zaibul Adan was also arrayed as Defendant No. 5, but later on his name was deleted. On legal intimation the present respondents opted to contest the claim of the petitioners by filing their written statement, wherein while raising legal and factual objections they denied the ownership of the petitioners. The trial Court after framing issues put the parties on trial, on the conclusion whereof the suit was dismissed. The same was the fate of the appeal, thus, the instant petition.
4. Petitioner No. 1 being a counsel contended that they are bonafide purchasers in possession of the suit property on the basis of registered sale deed, but the revenue functionaries have wrongly entered the said property as "protected forest" in the revenue record, which entry is liable to be rectified in their favour; that as the petitioners are in possession of the suit property since the date of purchase, therefore, their suit was well within time and the preparation of each and every Jamabandi was conferring upon them fresh cause of action, but this legal question has totally escaped the notice of the two Courts blow; that the Courts. below have non-suited the petitioners on flimsy grounds instead of considering the real facts of the case, because the registered sale deed in their favour has stood proved in view of the admission of the son of the vendor, who has appeared as P.W.3; that as the vendor was also owner of the adjacent two Khasra Numbers, which too he sold to certain other persons, therefore, this fact alone was sufficient for the proof of his original ownership, but no heed to this fact has been paid by the Courts below. He lastly contended that the petitioners in their memorandum of appeal have raised many grounds and under the provisions of Order XLI Rule 31 CPC the appellate Court being a first Court of facts was supposed to have met all the said grounds, but the said Court has rather recorded the impugned judgment in a slipshod manner.
5. On the contrary the learned Addl. Advocate General while refuting the said contentions of the petitioners, supported the impugned concurrent judgments contending that the petitioners have miserably failed to establish their ownership towards the suit property, therefore, the same has rightly been entered in the revenue record as a protected forest.
6. Arguments heard and record perused.
7. As discussed above the claim of ownership of the petitioners is founded upon a registered sale deed, which according to them was executed after they made themselves assured about the ownership of the vendor and visiting the site by obtaining physical possession of the said land. On the contrary this claim of the petitioners is negated by the functionaries of the forest department on the ground that the disputed property is forming part of the forest compartment and as it is covered with trees, thus, the vendor being not its owner could not have alienated the same in favour of the petitioners.
8. This Court in order to arrive at a correct conclusion as to whether the registered deed in favour of the petitioners is of no use to them and whether the vendor had no right to alienate the same in their favour. For this very purpose the entire facts of the case are once again required to be gone through before affirming or setting aside the impugned judgments and depriving the petitioners from their ownership by rendering their registered sale deed useless and meaningless. At the same time the last submission of the learned counsel regarding the nonobservance of the provisions of Order XLI Rule 31 CPC is also to be taken into account.
9. As far as the first issue is concerned, Petitioner No. 1 besides recording his own statement and tendering the, said registered sale deed has also recorded in support thereof the statement of the son of the vendor. The stance adopted by the petitioners in their evidence is that they purchased the suit property after due satisfaction and visiting the spot. This version of the petitioners finds support from the entries of the revenue record with regard to two other Khasra Numbers namely 680 and 681, which are lying adjacent to the suit Khasra Number and were sold by the vendor to Abdur Rauf etc. by putting them in possession thereof. The sale of these Khasra Numbers prima facie imparts a strength to the version of the petitioners regarding the original ownership of the vendor, because if he could be the owner of the adjacent Khasra Numbers, then in that event no adverse presumption could be drawn that due to the absence of producing any documentary evidence regarding his ownership, he could not be presumed to be the owner of the disputed property. The forest department has not so far challenged the validity of the sale by the said vendor in favour of the vendee with regard to the two other Khasra lumbers, if the same were also forming part and parcel of the compartment, because in the sale deed the description of the disputed property is given, but there is no mention on any side of any compartment. Moreover, on one side there was a registered sale deed and on the other side there were entries of the revenue record, but both the Courts below have not taken the pain as to which of these two documents was carrying much presumption of truth and as what was the position on the spot. Neither any local commission was appointed in order to ascertain as to whether the disputed property was forming part of the compartment and the same was covered with trees or it was agricultural in nature and was in possession of the petitioners. Had this exercise been undertaken in that eventuality the Courts below would have been in a position to arrive at a correct conclusion, because the suit property lies adjacent to the other sold property of the vendor. Even otherwise this exercise was necessary because one of the main reason for non-suiting the petitioners is the question of limitation which according to the trial Court started running right from 1985-86, when the Bandobast in the area was completed. This question could have been answered otherwise, if the petitioners were found in physical possession of the suit property being culturable in nature.
Needless to observe that if a person is owner in possession of certain agricultural property, he is not supposed to rush to the Court for the rectification of the adverse entries of the revenue record and it is his discretion as to when he opts to come for the said purpose because in that event the preparation of each and every Jamabandi is conferring upon him a fresh cause of action. In other words being in possession of any immovable property the period of limitation stands arrested and mere adverse entries of the revenue record can never be presumed sufficient to deprive him from his basic and original ownership.
10.Another unignorable aspect of the case is that the Courts below while dismissing the suit of the petitioners have also held that they did not produce documentary proof pertaining to the ownership of their vendor coupled with the fact that in the deed the vendor is shown as `daftari' owner, whereas his son during the Court statement has stated that the suit property was a `serai' of his father. This lacuna has also not been dealt with properly by the Courts below because for `daftari' or `serai' ownership in the area of Swat owners are never in possession of documentary evidence, rather the said ownership is based upon their customs and conventions. However, only Gujar caste is not supposed to be the original owner of any property in Swat and any member of the said caste is supposed to produce a deed in support of any claim about any immovable property.
11.Likewise apart from the aforesaid erroneous approach of the two Courts below, the last submission of the learned counsel regarding non-observance of the provisions contained in Order XLI, Rule 31 CPC is also not without force. Because under the said provision of law the appellate Court being first Court of facts is legally obliged to state points for determination, the decision thereon and the reasons for the decision, but unfortunately in this case the learned appellate Court has tried to decide the appeal of the petitioners in a very slipshod manner without accepting its responsibility of dealing with each and every ground having been agitated in the memorandum of appeal. The said memorandum of appeal embodies many grounds regarding the exclusive ownership of the petitioners, their possession upon the same and non- applicability of the question of limitation. A cursory glance on the judgment of the appellate Court leads this Court to an irresistible conclusion that the formalities of the said provisions of law do not stand observed and in this way the cause of the petitioners has been immensely prejudiced. The apex Court from time to time has laid down certain principles by making it incumbent upon the appellate Court to deal with each and every aspect of the case while hearing the appeal of an aggrieved person, so that all questions of facts are decided at the appellate stage. The obvious reason is that the appellate Court is the first Court of facts and the entire controversy re-opens and the whole evidence before it is supposed to be gone through and discussed threadbare to its satisfaction.
12.In the wake of the above discussion this Court has come to the irresistible conclusion that both the Courts below have fallen into grave error by ignoring the aforesaid observations while accepting the claim of title of the respondents toward the suit property as a protected forest. In other words they have badly failed to exercise proper jurisdiction, so vested in them.
13.The crux of the above discussion is that this Court is convinced that both the Courts below have fallen into error while non-suiting the petitioners. Although the approach of both the Courts.
Below is erroneous and wrong, but in order to save the parties from playing another protracted round of litigation it would be in the interest of justice to direct the learned appellate Court to consider the above narrated facts and give proper judgment afresh. For the spot inspection a skilled local commissioner preferably a senior revenue functionary or senior Advocate be deputed for ascertaining the fact as to whether the disputed property is covered with trees and forming part of the compartment or it is an agricultural property and is in possession of the petitioners and is lying adjacent to the other sold property by the vendor.
14.As the petitioners have made out a case of indulgence of this Court in the exercise of revisional jurisdiction u/S. 115 CPC, therefore, this Court is left with no alternative, but to remand the matter to the learned appellate Court to fulfill the directions and give fresh judgment after looking into the material available on the record in its true perspective.
Resultantly, petition in hand is accepted, the judgment of the learned appellate Court is set aside with the aforesaid directions. It is further directed that the said Court shall re-decide the appeal within three months positively. Parties are left to bear their own costs.