This appeal is directed against the Judgment and decree of Civil Judge, 1st Class, Hyderabad, passed in Civil Suit No. 126/66, decreeing the suit of the plaintiff in the sum of Rs. 33,281.72 with interest at the rate of 6% per annum to be calculated from expiry of three months period from the date of award till the realization of the amount.
2. The respondents had filed the suit for recovery of Rs. .35,000 against the then Government of West Pakistan (appellant) on the allegation that they were owners of several survey numbers mentioned in paragraph 2 of the plaint admeasuring 178.22 acres. That by notification dated 15-10- 1941 the Government introduced a scheme for the development of forest known as Sadnani Forest in District Thatta and in. That connection it was proposed to acquire 950 acres of land situated in Deh Tahimani Tapo Taluka and District Thatta, which included the curvey numbers mentioned in paragraph 2 of the plaint. That on 22nd August, 1963, the possession of the said land was taken over by the appellant from the respondent when a notification was issued on the same day by .The Government declaring the area of 950 acres (including the land of respondents) as .Reserved forest. That the Deputy Collector, Thatta, who was appointed as Forest Settlement. Officer under section 4 of the Forests Act, determined a sum of Rs. 33,281.72 as compensation payable to the respondents on account of acquisition of land by the Government. That the respondents approached the appellant for payment of the compensation determined by the Forest Settlement Officer but no payment was made to him and, therefore, in April, 1964 the appellant were called upon through a legal notice served under section 80, C. P. C. To pay the said amount. Since the appellant did not pay the amount in spite of service of above notice, suit No. 128/66 claiming a sum of Rs. 33,281.72 as amount awarded to respondents by the Foist Settlement Officer under the award dated 19-9-1963 and a sum of Rs. 2718.18 as interest by way of damages at the rate of 12% from the date of notification namely 28-8-1963 till the filing of the suit was claimed. The suit was resisted by the appellant and it was contended before the Court that the area of 950 acres proposed to. Be acquired was Government land and that possession thereof was taken over by the Forest Department in the year 1941. It was also contended in the Written Statement that the appellant filed objections against the award and the matter is pending before the Deputy Collector, Thatta.
Several other legal issues were also raised in the written statement filed on behalf of the appellant in the suit. On the basis of the pleadings of the parties the trial Court framed the following issues :- "(1) Whether the suit is not maintainable ?
(2) Whether the suit is barred under Limitation Act ?
(3) Whether the award is in contravention of Forest Act and, therefore, it is illegal ?
(4) Whether this Court has no jurisdiction ?
(5) Whether the plaintiff were owner of 178. 22 acres in Deh Thahi. Mani Taluka Thatta District Thatta ?
(6) Whether the defendants acquired 178. 22 acres from the plaintiffs' land ?
(7) Whether the award for payment of Rs, 33,291.75 given by the Deputy, Collector in favour of Plaintiff on 19-9-1963, is final ?
(8) What should the decree be ?"
The trial Court found all the issues against the appellant and as a result of findings on the issue's the suit was decreed for the amount awarded to the respondents by the Forest Settlement Office as compen--sation but the prayer for interest from the date, of notification till the filing of the suit was disallowed. However', interest at the rate of 6% per annum from the date when the award became final i.e. After the lapse of 3 months of the date of the award- till the realization of the amount was awarded.
3. 1 have heard. Mr. Abbas Farooqi, and Mr: Akhtar Mahmood, the learned counsel for the appellant and the respondents respectively in this appeal:
4. Mr: Abbas Farooqi, contended before me that the evidence on record was not enough to show that the area declared as a "reserved forest" including the area of 178.22 acres; claimed by the respondent was property of the respondents. It is further contended by the learned counsel that the. Land which was declared as "reserved forest" was Government land and respondents had no right whatsoever to claim any compensation in respect of the same. Alternatively, it is contended by the learned counsel that the very fact that the Government had issued a notification as far back as in the year 1941 was enough to show that this land was a Government land and the respondents having failed to prefer any claim at the time of initial declaration by the Government in 1941 the area as a "protected forest" the subsequent claim by them was not tenable in law. It is also contended that an appeal against the award of Forest Settlement Officer has been preferred by the appellant which is pending before the appropriate authority and as such the claim made by the respondent on the basis of award was premature. Before. Examining the above contention of the learned counsel it is necessary to mention here some of the admitted facts which arise from the documents on record produced by the parties before the trial Court. On 6th December, 1939 Divisional Forest Officer, Karachi wrote a letter to the Assistant Controller, Thatta, laying a claim over a "Katcha" land measuring 950 acres which was allegedly formed in front of Sadnani forest of Thatta range in the Thatta Taluka and requested in that letter that the same may be awarded to the Forest Department. On 9-7-1941 the Range Forest Officer wrote to the Div. Forest Officer, Karachi, informing him that the charge of the above Katcha was taken over by him from the Survey Tapedar and it was requested that the usual notification under section 29 may be issued. It is urged that a notification was thereafter issued by the Government under section 29 of the Forest Act on 15-10-1.941 declaring the area a "protected forest" However, copy of the said notification has not been produced in evidence before the trial Court. There is however on record the notification issued by the Government in the year 1956 under section 4 of the Forest Act with reference to an earlier notification of Government of Sind dated 15-10-1941, declaring 950 acres of Sadnani forest as "reserved forest". In the said notification the Asstt. Collector or the Deputy Collector, incharge of Thatta Taluka was appointed as Forest Settlement Officer to enquire into and determine the existence of any right alleged to have existed in favour of any person over the said land. By the same notification the Deputy Commissioner of Thatta was authorised to hear appeals from the orders of the Settlement Officer under sections 11, 12, 15 and 16 of the Act. After the notification of 1956 another notification was issued by the then Government of West Pakistan on 19th November, 1962 where in reference to Government of Sind Notification No. R. S. 7/3-H (b)/41, dated 15th October 1941, it was stated that it is proposed to constitute land in the Thatta Taluka of the Thatta district, specified in the schedule . As reserved forest with effect from the date of notification. In the schedule to this notification "name of the forest" to which the area was proposed to be added was shown as Sadnani. Against column of "Deh" the name of '-Thahimani" was mentioned while the area proposed to be added was shown to be 950 acres. In the above notification -issued in November, 1962 the Assistant Collector, incharge of the Sub-Division was appointed as Forest Settlement Officer to enquire into and determined the existence, nature and extent of any right alleged to exist in favour of any person in or over this land, and further the Deputy Commissioner, Thatta was authorised to hear appeals against the orders passed by Forest SettlementIt, 12,15 and 16 of the said Act. It appears that the Officer under sect respondents after issuance of the above notification preferred a claim before the Forest Settlement Officer on 4-3-1963, alleging that the area of 950 acres proposed to be added to the Sadnani forest included an area of 178.22 acres owned by them for which they were entitled to compensation The Deputy Collector, Thatta after receipt of the claim of the respondents enquired from the Mukhtiarkar, Thatta about the value of the land, who on 9-8-1963 informed the Deputy Collector, Thatta, that the price per acre of the land which was acquired under above notification was Rs. 80 per acre before 1941. In the meantime the Div. Forest Officer, also wrote to the Deputy Collector, on 2-8-1963 that the charge of the above "Katcha" was taken over by the Forest Officer on 9-4-1941. The Deputy Collector, Thatta who was appointed as Forest Settlement Officer under the notification of 1962, on the basis of the valuation reported to him by the Mukhtiarkar, that a and the letter of the D.F.O dated 2-8-1963 gave award in favour of the respondents in the sum of Rs. 33281 calculating the value of the land at the rate of Rs.
80 per acre. This award was forwarded by the Deputy Collector of Thatta to the Deputy Commissioner, Thatta, on 16-9-1963 with a request to place the amount of award at the disposal of Forest Settlement Officer for payment to claimant. It appears that the Div. Forest Officer Thatta on 11-12-1963 by his letter addressed to Deputy Collector, Thatta, claimed that the area of 950 acers was actually forest land which was eroded away by the river in the year 1938-39 and therefore the claim of any person in respect of 178.22 acres out of the above area does not arise. A request was made that the case may be re-examined in the light of these facts.
5. Mr. Abbas Farooqi, the learned counsel for the appellant contended before me that the area of 950 acres which has been shown in the notification dated 19-11-1962 is the same which was shown in the notification of 1956 and in the notification of 1941 and therefore the subse--quent notification dated 19-11-1962 was managed collusively in order to make out a case for compensation by the respondents. It is contended that the issuance of notification in 1962 was illegal and without lawful authority and, therefore, no claim could be entertained pursuant to the above notification. I have gone through the pleadings of the parties and the evidence on record which is mainly documentary, but failed to find any such contention raised by the appellant at any stage of the suit before the trial Court. The witness of the appellant who was examined in the case, also did not challenge the legality or validity of the notification dated 19-11-1962 and admitted that under the aforesaid notification Forest Settlement Officer was appointed by the Government to go into the claim if any of the person in respect of land which was to be added to the Sadnani Forest. The appellant in their written statement nowhere alleged any fraud or collusion in the issuance of notification dated 19-11-1962. 1, therefore, feel no hesitation in repelling the contention of Mr. Abbas Farooqi, that the notification dated 19-11-1962 was the result of any collusion or fraud. The next contention of Mr. Farooqui, is that the claim of respondents was barred by limitation as the 1st notification, it is contended, concerning the land was issued by the Government in 1941 whereas the claim was made by the respondents in 1963 and, therefore, it was time barred. It is common ground between the parties that the notification of 1941 was issued by the Government under section 29 of Forest Act but copy of this notification is not produced on record. Under section 29 of the Act, Government has power to declare any "forest land" or a "waste-land" as "protected forest" by issuing a notification in the official Gazette. However, before issuing such a notification as inquiry has to be made under subsection (3) of section 29 of the Act with regard to the rights of Government and of private persons in or over the said land and the result of such an enquiry is to be recorded at a survey or settlement, or in such other manner as the Government may think sufficient and every such record is to be presumed correct unless contrary is proved. Mr. Abbas Farooqi, conceded before me that no enquiry as contemplated under section 29 (3) of the Act appears to have been made in respect of the land in dispute and no record of survey or settlement is available. The admitted position on record is that subsequent to the notification of 1941 two, other notifications in respect of this very land were issued in the years 1956 and 1962 respectively under section 4 of the Act and there is nothing in the law which debarred the respondent from asserting their, if the had any, under these notifications, Mr. Abbas Farooqi, the claim learned counsel for the appellant contended before me that all "waste-- and'and "forest-land" under section 3 of the Act vest in Government and therefore when a notification is issued by the Government under section 4 of the Act, declaring such land as "reserved forest", no question of payment of any compensation by the Government in respect of the land to any private individual could arise. The contention of the learned counsel does not seem to be correct. Section 3 of the Act provide that Government may constitute any "forest-land" or a "waste-land" which is the property of Government or over which the Government has proprietary rights as a "reserved forests". The scheme of this section clearly indicates that in order to enable the Government to constitute any "forest-- land or a "waste-land" as a "reserved forest", the land must be the property of the Government or over it the Government possessed proprietary rights ; but this does not necessarily mean that all "forest-land" or "waste-land" belongs to the Government and over it no private indivi--dual could have any right or interest of any nature whatsoever. The above conclusion reached by me is fully supported .By the language of sub section (3) of section 29 of the Act which provides that before declaring any "forest-land" or a "waste-land" as a "protected forest", an enquiry has to be made in respect of nature and extent of the right of Government and of private person in or over the "forest land" or "waste-land". If the contention of Mr. Farooqi, that every "forest-land" and a "waste-land" vests in the Government, is correct, then there was no necessity of enacting provision like subsection (3) of section 29 of the Act or holding enquiry as to the extent and right of Government and private individual in or over the "forest-land" and "waste-land" before declaring it as a "protected forest".
Further unlike section 3 of the Act which provides for constitu--tion of only "forest-land" and "waste-land" as a "reserved forest, the Government has power under section 4 of the Aot to constitute any other land as a reserved forest and when such a decision is reached by the Government then a notification in the official Gazette is to be published in terms of section 4 (1) (a) and (6) declaring the intention of the Government to constitute such land as reserved forest and specifying as nearly as possible the limits of such land. This is to be followed by an appointment of a Forest Settlement Officer, in terms of section 4 (1) (c) of the Act, to enquire into and determine the existence, nature and extent of any right alleged to exist in favour of any person in or over the land comprised within such limits. After issuance of notification under section 4 of the of the Forest Settlement Officer is required to publish a proclamation under section 6 of the Act in the local vernacular in every town and village in the neighbourhood of the land mentioned in the notification issued under section 4 of the Act specifying as nearly as possible, the situation and limits of the proposed forest, explaining the consequences which will ensue on the reservation of such forest and fixing a period of not less than three months from the date of such proclamation requiring every person claiming any right in or over the land, to file his claim to the Forest Settlement Officer and to appear before him and state the nature of such right and the amount and particulars of compensation claimed in respect thereof. Sections 7 and 8 lays down the procedure for determination of the claim and section 9 provides that if after the proclamation issued under section 6 no claim has been made then the claim shall be deemed to have been extinguished unless the person claiming right satisfies the Forest Settlement Officer that he has sufficient cause for not preferring such claim within the period fixed under section 6 of the Act. After determination of the claim has been made by the Forest Settlement Officer, any person aggrieved by such determination is entitled to prefer an appeal against it to an officer appointed by the Government in that behalf. After determination of claim by the Forest Settlement Officer and disposal of appeal if any, the Government may issue notification under section 20 of the Act, declaring the forest to be a "reserved forest". The above provisions in the Forest Act clearly indicate that the claim of a person in respect of the land declared as "reserved forest" under section 4 of the Act is not extinguished until issuance of a notification by the Government under section 20 of the Act and till then a claimant can approach the Forest Settlement Officer appointed under the notification issued under section 4 of the Act and if he can satisfy the Forest Settlement Officer that he had sufficient cause for not preferring claim within the time fixed under the proclamation issued under section 6 of the Act, then the Forest Settlement Officer will have jurisdiction to entertain the claim. In the case before me it is not disputed that the claim of the respondents was within the time fixed under the proclamation issued under section 6 of the Act by the Forest Settlement Officer. Mr. Abbas Farooqi, concedes that there is nothing on record to show that after issuance of the notification under section 4 of the Act in the year 1956 any proclamation was issued by the Forest Settlement Officer appointed under said notification under section 6 of the Act. It is further admitted that the proclamation under section 6 of the Forest Act was issued for the first time in respect of land by the Forest Settlement Officer who was appointed under the notification of 1962. The claim by the respondents having been preferred as admitted by the learned counsel for the appellant, within the period fixed under proclamation issued under section 6 of the Act, in my view the claim made by the respondent cannot be treated as barred by limitation Mr. Abbas Farooqi, learned counsel for the appellant lastly contended that the appeal preferred by the appellant against the award is still pending before the Court and, therefore, the claim made by the respondents on the basis of award was premature. This contention of the learned counsel also has no merit. The award in this case was made by the Forest Settlement Officer on 16-9-1963 and this award was made after due notice to the appellant. Under section 17 of the Act, the appellant had three months time . To prefer an appeal to the, Deputy Commissioner, Thatta, who was appointed as the appellate authority to hear appeals from the orders of Forest Settlement Officer, under the notification of 1962. There is nothing on record to show that any appeal was preferred by the appellant within the time limit prescribed under section 17 of the Act to the Deputy Commissioner, Thatta. After expiry of the period of three months from the date of award, the award became final and therefore the respondents bad the right to enforce the same in accordance with the law. The argument regarding pendency of appeal also appears to have been raised before the trial Court by the appellant and by consent of the parties. Certified copy of the orders passed by the Deputy Commissioner, Thatta dated 26-6-1968 was brought on record. This document shows that a revision was preferred by the appellant in July, 1968 which was treated as an appeal by the Collector. The trial Court came to the conclusion that the suit was instituted by the respondent on 24-5-1966 when admittedly no appeal was pending and in view of the fact that no appeal was filed within the period prescribed under section 17 of the Act he repelled the contention of the appellant regarding pendency of the appeal. After examining the evidence on record and going through the pleadings of the parties I find no substance in the contention of the learned counsel for the appellant that any appeal was pending at the time of institution of the suit by the respondent and therefore the claim made by them was premature or not tenable under law. I may also mention here that during the arguments in this appeal I allowed time to Mr. Abbas Farooqi, learned counsel for the appellant to place on record the certified copies of the alleged appeal or orders passed thereon by any competent authority if any but in spite of the time having been allowed to the learned counsel by me he was unable to produce the same. The result of the above discussion is that the appeal is dismissed with costs and the Judgment and decree of the Court below is confirmed