CH. MUHAMMAD MASOOD JAHANGIR, J.- Briefly the facts are that Syed Ghazanfar Ali Shah and legal heirs of Syed Raza Ali Shah respondents (hereinafter to be referred as plaintiffs) brought a suit for possession with the assertion that land measuring 117 acres fully mentioned in the body of the plaint was evacuee property, which was leased out to the petitioners/Forest Department (hereinafter to be referred as the defendants) for a term of twenty years vide notification dated 27.7.1950. However, out of the said property a chunk of land measuring 13 acre 5 kanals and 12 marlas was released and restored to the original owners on 27.1.1959 whereas rest of the property measuring 103 acres 2 kanals and 8 marlas remained in occupation of the defendants. It is also averred in the plaint that whole of the disputed land being evacuee property was available for allotment to the displaced persons and after due verification of claims of the plaintiffs the same was proposed to the them, which was subsequently confirmed to the plaintiffs by duly attestation of RL-II in pursuance of the issuance of No Objection Certificate by the Forest Department/defendants. It is also pleaded in the plaint that as the disputed property was proposed to the plaintiffs and later on it was confirmed, therefore property in disputed became private property and no nexus was attached with the Rehabilitation/Settlement authorities whereas the lease period of defendants was extended for another ten years, which expired on 26.7.1980, but despite of the best efforts made by them, the plaintiffs could not succeed to take physical possession in spite of that the defendants had no right to retain possession thereof, which constrained the plaintiffs to institute the suit for possession. The said suit was resisted by the defendants with the assertions that disputed property is owned by them and that no NOC was issued on behalf of the department.
2. The learned trial court captured the disputed area of facts by framing certain issues, recorded the evidence adduced by the parties and after appreciating the same vide judgment and decree dated 3.4.1996 partially decreed the suit of the plaintiffs to the extent of 13 acres, 5 kanals and 12 marlas whereas the suit to the extent of 103 acres 2 kanals and 8 marlas was dismissed. Being aggrieved, three appeals No.102 to 104 of 1997 were filed by the plaintiffs before the learned lower appellate court, which came up for hearing before the Additional District Judge, Sheikhupura, who vide judgment and decree dated 17.7.1999 accepted the appeals, set aside the judgment and decree passed by the learned trial court and decreed the suit filed by the plaintiffs with costs while holding that the plaintiffs being lawful owners of the suit land were entitled to get its possession, the suit was maintainable and the defendants were not owner of the suit property. Being aggrieved C.R. No.1575, 1882 and 1883 of 1999 have been filed by the defendants against the judgment and decree dated 17.7.1999, which are being disposed of jointly by this single judgment as the common questions of facts and law are involved.
3. The learned counsel for the defendants (petitioners) has argued that the Chief Settlement Commissioner vide memorandum dated 27.2.1965 (Exh.D4) had put a ban on the allotment of notified or un-notified evacuee land falling under possession of Forest Department for its transfer against claims under the provisions of West Pakistan Rehabilitation Settlement Scheme and during the said ban the disputed property could not be confirmed to the plaintiffs; that the said memorandum was challenged in various cases and this Court as well as the august Supreme Court of Pakistan declared the same as valid having been issued by the lawful authority. He has placed his reliance upon the judgments reported judgments (FOREST DEPARTMENT THROUHG DIVISIONAL FOREST OFFICER, CHHANGA MANAGA LAHORE VS. MUHAMMAD AMIN AND 26 OTHERS (2002 SCMR 703), SHABBIR HUSSAIN AND ANOTHER VS. MST. SIRAJ BIBI AND 10 OTHERS (2003 MLD 75) and MUHAMMAD AYUB AND OTHERS VS. THE PROVINCE OF PUNJAB (1989 SCMR 1033) to contend that disputed land having been proposed to the plaintiffs against their claims prior to the issuance of memorandum Exh.D4 in the year 1964 did not create any right or title in favour of the plaintiffs and the confirmation of the disputed property on 22.5.1965 after the issuance of above referred memorandum Exh.D4 was against law, void ab initio and without lawful authority, but the learned lower appellate court without considering the said memorandum decreed the suit in favour of the plaintiffs through the impugned judgment and decree, which is liable to be set aside on said score alone. It is further argued that the plaintiffs had already agitated their claims up to the level of Supreme Court of Pakistan, but remained unsuccessful when their CPLA No.115 of 2005 was dismissed and the learned lower appellate court in derogation of the said judgment committed serious illegality and irregularity while decreeing the suit for possession filed by the plaintiffs. He has further contended that vide notification dated 27.7.1950 the suit land was foreclosed as protected forest and the defendants having spent a huge amount for brining up a jungle and making the payment of the price of the suit land on 28.6.1974 to Settlement Department had become owners of the disputed land, but this fact was escaped from the notice of the learned lower appellate court while passing the impugned judgment and decree, which is liable to be set aside while allowing these civil revisions and judgment of the learned trial court be restored.
4. Conversely, the learned counsel for the plaintiffs has argued that the property in disputed being evacuee was available for allotment against the verified claims and the plaintiffs duly presented their claims before the Settlement Department, who after due verification proposed the said land in their favour in the year 1964; that later on the said competent hierarchy confirmed the land to the plaintiffs by attestation of RL-II Exh.D9 & D10; that defendants had never challenged the proposal as well as confirmation of land to the plaintiffs; that land measuring 13 acres, 5 kanals and 12 marlas had already been released by the defendants of their own and by releasing the said chunk of property the defendants had conceded the allotment of the plaintiffs as well; that the disputed land was originally foreclosed in favour of defendants for a period of twenty years vide notification Exh.P3, but the foreclosure remained intact up to 26.7.1980 as the initial lease period was extended for another 10 years and after the expiry thereof, the plaintiffs were entitled to get the possession of the disputed property on the basis of their title, which has been duly done by the learned lower appellate court while passing the impugned judgment and decree and these civil revisions are liable to be dismissed.
5. Heard the arguments and perused the record.
6. It is not denied by the parties that disputed property was owned by non-muslims, which, on their migration after creation of this country, attained the status of evacuee property and was proposed by the Additional Settlement Commissioner to the plaintiffs on 30.11.1964 with the specific condition that the suit land was in possession of the Forest Department/defendants and the same would be confirmed to them, if the same was de-notified by the Forest Department, otherwise it would be their own responsibility that the disputed property was de-notified from the defendants/department and prior to confirmation of disputed land in favour of the plaintiffs, an NOC was presented before the DSC duly issued by the defendants/department. Then after considering the said NOC the disputed property was allotted to the plaintiffs against their claims.
This fact is duly proved from the perusal of copy of RL-II Exh.D9 & D10, which was brought on record of the suit by the defendants themselves. No doubt the disputed property was confirmed to the plaintiffs after the issuance of memorandum dated 27.2.1965, but the fact remains that if such a ban was imposed, then why the defendants/department had issued the said NOC. The contention of learned counsel for the defendants that NOC presented before the DSC was fictitious document is misconceived as if it was so, then department/defendants must have challenged the confirmation of the disputed land in favour of the plaintiffs while alleging that it was confirmed on the basis of a fictitious NOC, but admittedly no such effort had ever been made by the defendants/department at the relevant time. Even otherwise the department/defendants of their own de-notified a chunk of land measuring 13 acres 5 kanals and 12 marla and by doing so the department/defendants had again conceded the confirmation of the disputed property in favour of the plaintiffs.
Furthermore, in another round of litigation regarding the disputed property the apex Court while deciding CPLA No.115 of 1992 wherein defendants department/government of Punjab was also party, observed as under:- "3. The present petitioners then filed suit for declaration to the effect that they were owners in possession of the land in dispute and that the Forest Department, respondent No.2, had no right whatsoever in the said land. The suit was filed against the Province of Punjab and Forest Department, respondents Nos. 1 & 2. It was asserted that the land was proposed on 30.4.1965 and then confirmed in their names on 22.5.1965 and on challenge made by the Forest Department, the learned Additional Settlement Commissioner, vide order dated 22.4.1969, upheld the allotment of the land in dispute in their favour and further held that Forest Department has no concern with the land in dispute. The said respondents Nos.1 & 2 resisted the suit and the parties also produced some evidence, when an application was made by Hasham and Asghar, respondents Nos.3 and 4, for being impleaded as defendants on the plea that they were the allottees of the land by virtue of order dated 7.2.1978, passed by the Settlement Commissioner in revision. This revision petition was filed against the order dated 22.4.1969 of the Additional Settlement Commissioner allotting the land to the petitioners and the same was accepted and order dated 22.4.1969 was set aside. It was also pointed out that the order of the Settlement Commissioner was challenged by the plaintiffs/petitioners in the High Court in Writ Petition No.377-R of 1977 and the said writ petition was dismissed. These respondents were then impleaded as defendants and they in the written statement asserted that they were owners of the land and that the suit in the presence of the order passed in the writ petition was not maintainable. The plaint was ultimately rejected by the learned trial Court under Order VII Rule 11 CPC vide order dated 24.9.1989. The appeal filed challenging this order also failed vide impugned judgment dated 18.9.1991. The revision petition filed against this order was also dismissed by a learned Single Judge on 15.10.1991"
7. So the proposal and confirmation of land in favour of plaintiffs was also acknowledged. The copy of letter dated 18.12.1980 available on record as Exh.P20/1 reveals that Solicitor, Government of Punjab had addressed the same to the Secretary, Forest/Wild Life Department etc. to the effect that since the maximum period of thirty years foreclosure under the law had expired and there being no provision for extension or fresh notification it could neither be extended nor could fresh notification be issued except with the consent of the owners of the private property. The said letter is reproduced in verbatim hereunder for ready reference:- "Tele No.53564 Government of the Punjab Top Priority Solicitor's Department Will the Secretary to Government of the Punjab, Forestry and Wildlife Department, Lahore, kindly refer to his Department's U.O.No.SO.FT(Ext.) 705/70, dated the 21st September, 1980, on the above subject?
2. It appears that notifications in this case were issued with the consent of the owners for closing the said land for the purpose of degeneration for a period of twenty years on the 27th July, 1950.
Subsequent notification extending the period further for ten years was issued on the 12th April, 1971.
Apparently these notifications were issued by the Forest Department treating the land as private property under Section 38 of the Forest Act XVI of 1927, and accordingly under Section 30(b) ibid, the Government may by notification declare the closure of any land for such term not exceeding thirty years as the Provincial Government thinks fit. Obviously the term for closing the land for improvement thereof cannot exceed thirty years.
3. Since the maximum period of thirty years for closure under the law has expired and there being no provision for extension for fresh notification it can neither be extended nor can fresh notification be issued. However, if the owners of private property so desire, fresh notification can be issued with their consent.
Sd/- Solicitor to Government of the Punjab The Secretary, Forestry & Wildlife Deptt.
U.O.No.Op/80/L/30381/80 Dated 18.12.1980 In the light of said documentary evidence, the plaintiffs succeeded to prove on record that disputed property was duly proposed to them against their verified claim, which was later on confirmed to them by the competent authority and the same is intact till today whereas the disputed property was only foreclosed in favour of the defendants for a certain period, but after the expiry of said term the defendants were liable to restore the possession of the disputed property to its owners/plaintiffs.
8. The main grouse of the defendants before this Court that disputed property could not be confirmed to the plaintiffs after the issuance of memorandum dated 27.2.1965 Exh.PD4 is without any force as it is an admitted fact that prior to the issuance of said memorandum the disputed property had already been proposed to the plaintiffs in the year 1964 and the said memorandum neither covered the proposed property nor it could be concluded that mere proposal did not create right or title in whose favour the land was proposed. The said question has already been resolved by the apex court in the judgment reported as WALI MUHAMMAD VS SETTLEMENT COMMISSIONER, SARGODHA DIVISION, SARGODHA AND ANOTHER (1984 SCMR 1574) and relevant portion thereof for ready reference is reproduced as under:- "The importance of a proposal, under the Rehabilitation Settlement Scheme has been highlighted by a remarkable decision given by a Division Bench of the Lahore High Court (consisting of Muhammad Iqbal, C. J. and S. S. Jan, J.) in the case of Mst. Inayat Bibi etc. v. Assistant Settlement Commissioner and Chief Settlement Commissioner (PLD 1978 Lah 252). In this case, the proposal for allotment of land were made in favour of the petitioners before the High Court, who possessed verified claims of agricultural land abandoned in India in accordance with the provisions of, paragraph 64 of the Rehabilitation and Settlement Scheme, Part II. However, before the proposals could be confirmed, the Office of the Chief Settlement and Rehabilitation Commissioner, Punjab, issued a memorandum on 25-6-1973 addressed to all settlement authorities in the Province ordering that the allotment of rural evacuee agricultural land against verified claims/entitlement certificates be stopped with immediate effect and all concerned officers were directed not to make further allotment of rural evacuee agricultural land against any claim/entitlement certificates. The proposals already made and not yet confirmed were ordered to stand cancelled. This memorandum of the Chief Settlement Commissioner was challenged before the High Court on the ground that it was ultra vires the powers of the Chief Settlement Commissioner, The learned Judges of the Division Bench, in a carefully considered judgment, held that the memorandum in question was of no legal effect and directed that the proposals already existing in favour of the petitioners should be considered as still subsisting and be disposed of in accordance with law."
9. The other grouse of the learned counsel for the petitioners that Forest Department had paid the sale consideration and as such the petitioners became owners of the disputed property and decree for possession cannot be passed against them is without any merit. The document Exh.P21, which is copy of minutes of the meeting 14.07.1985, shows that the price of the land was determined to be Rs.1,32,00,000/- whereas vide challan Exh.D6 the Forest Department only deposited an amount of Rs.12,71,371/-, but it does not spell out that how the Settlement Department could sell land, which had already been transferred by it by way of a valid confirmed entry on RL-II. So any deposit of Rs.12,71,734/-in pursuance thereof is of no legal consequence. Moreover, the perusal of letter Exh.P23 dated 13.11.1988 and Exh.P24 reveals that the Forest Department i.e. Forest Minister had issued a policy decision to release the properties in favour of the present respondents and for ready reference Exh.P23 dated 13.11.1988 is reproduced hereunder:- "Phone 213749 219403 MINISTER FOR FORESTRY AND TOURSIM, PUNJAB Dated Lahore, the 13/11/1988 The Secretary, Forestry, Wildlife and Fishries Department, Govt. of the Punjab, Lahore.
Subject:- REQUEST OF SYED GHAZANFAR ALI SHAH AND OTHERS FOR RELEASE OF LAND MEASURING 103 ACRES FROM ILLEGAL POSSESSION OF FOREST DEPARTMENT.
Under the instructions of Chief Minister, Punjab the case has been re-examined thoroughly and found that the land measuring 117 Acres was placed at our disposal by the Custodian of Evacuee Trust Property for forestation u/s 38(b) of Forest Act, 1927 for a period of 28 years, vide Notification No.2493-D(F), dated 27.7.1950. Later on the Custodian of the Evacuee Trust Property allotted the land in question to the petitioners in 1965, after getting "No Objection Certificate" from the Forest Department.
The land measuring 13 Acres, 5 Kanals and 12 Marlas out of total land of 117 Acres has already been de-notified by our department and the possession of the same is already with the petitioners.
In the light of the recommendations of Law Department vide U.O.letter dated 18.12.1980, we do not enjoy a sound legal position in the case and since the petitioners are ready to withdraw from litigation concerning this case, it is hereby ordered in the interest of justice that remaining land alongwith possession be returned immediately to the petitioners, being the rightful owners of the land.
The petitioners may, however, be asked to deposit the amount of Rs.11546/-to avoid any audit objection, if any, at the later stage.
Sd/- (SARDAR ATIF RASHID)
MINISTRY FOR FORESTRY, WILDLIFE AND FISHRIES DEPARTMENT {{DATA UNARRANGED}}
1. Chief Minister, Punjab
2. Syed Ghazanfar Ali Shah For information with reference
3. Syedah Imtiaz Fatima to representation on subject
4. Mian Muneer Ahmad matter.
Admittedly the above referred letters have not been recalled/cancelled by the Forest Department or Government of the Punjab. The Forest Department had already denotified 13 Acres of land out of the disputed property vide notification dated 27.1.1959 Exh.P20 and this document has to be operated as an estoppel against the version of the Forest Department that the remaining disputed property had been purchased by them. So this very argument of the Forest Department being without any foundation and cannot stand in the eyes of law.
10. The case law cited by the learned counsel for the defendants runs on different footing as in such cases the allotment of the land was challenged whereas in the present case the allotment in favour of the plaintiffs was never challenged by the defendants. The plaintiffs are lawful owners of the suit property whereas the defendants having no title or right to retain possession of the suit property after the expiry of the lease period in the year 1980 were liable to part with possession thereof in favour of the plaintiffs as the title documents issued by the competent authority in their favour are still intact. While clinching the said facts and circumstances, the learned lower appellate court has rightly passed the impugned judgment and decree while decreeing the suit filed by the plaintiffs in toto on the valid reasons. The learned counsel for the defendants has failed to point out any illegality, irregularity or jurisdictional defect committed by the learned appellate court while passing the impugned judgment and decree, which is not even tainted with any misreading or non-reading of evidence and cannot be interfered with by this court in the exercise of revisional jurisdiction under section 115 CPC.
11. Sequel of the above discussion is that these civil revisions are without any substance and merit, which are dismissed accordingly.
12. Before parting with this order, it is also noteworthy to observe that during the pendency of these civil revisions, certain applications were filed under Order I rule 10 CPC by different persons seeking to implead them as party keeping in view their independent rights in the suit property agitated in the applications.
Since all the civil revisions have been dismissed, the said applications have become redundant and the applicants thereof may agitate their claim before the proper forum during the appropriate proceedings, if need be. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.