SALAHUDDIN PANHWAR, J.---Through instant civil revision, applicants have assailed the judgment and decree dated 31.8.2009 and 10.9.2009 respectively passed by learned VIIth Additional District Judge, Hyderabad whereby dismissing the Civil Appeal No.36 of 2006 "Re-District Forest Officer and others v. Noor Muhammad and others" and in consequence whereof maintaining the judgment and decree of learned 3rd Senior Civil Judge, Hyderabad dated 23.01.2006 through which the suit of the respondents/ plaintiffs, being FC Suit No.90/1999 was decreed.
2. Facts, giving rise to the instant revision, are that respondents/plaintiffs filed FC Suit No.90/1999 for Declaration and Permanent Injunction wherein pleading that land in question originally belonged to Tayyab son of Dhani Lakho, the predecessor-in-interest of respondents/ plaintiffs and he was enjoying fruit as exclusive owner. Said Tayyab son of Dhani Lakho, their predecessor-in-interest died, leaving behind only one son namely Noor Muhammad who also died leaving 1) Muhammad Ali, 2) Allah Bachayo, and 3) Muhammad Tayyab. Out of them Muhammad Ali also died leaving 1)
Noor Muhammad 2) Muhammad Hassan 3) Mst. Hanifa, 4) Mst. Khanzadi and 5) Mst. Zarina as his legal heirs. It was further pleaded that Allah Bachao also died leaving 1) Hussain Baksh, 2) Mst.
Hayat Khatoon, 3) Mst Manna, 4) Mst. Zhora and 5) Mst. Hameeda as his surviving legal heirs. It was also claimed that legal heir No.2 Muhammad Tayyab also died leaving 1) Ghazi alias Gajan, 2)
Muhammad Tayyab and 3) Mst. Dhanno as surviving legal heirs.
3. It was further pleaded that land in question remained in physical and cultivation possession of their predecessorin-interest and after their death, they (Plaintiffs) are enjoying possession and fruits of land. Possession of the land was never 'taken from them (Plaintiffs) and it was Katcha land and in early of 19th Century i.e. Year 1913-14 suit land was eroded by Indus River and the same remained as Darya Khurdi which was repaired in year 1974 onwards and since then suit land is in physical possession of plaintiffs/respondents; the land was never acquired by appellant/defendant No.3 legally as per relevant laws to be treated as "reserved forest'. The respondents/ plaintiffs further contended that recently they came to know through Tapedar of the beat that suit land was notified by the Government of Sindh, hence they approached Additional Deputy Commissioner and filed application but no response so they moved another application to Mukhtiarkar about suit land but in vain. The respondents/plaintiffs, claiming to be owners,' alleged confiscation of land as illegal, improper, mala fide, unlawful and without lawful authority.
4. Having pleaded such facts, they prayed for following relief (s):-- a. That this Honourable court may be pleased to declare that the plaintiffs are the owners of the suit land, bearing Survey Nos. 2(6-20), 3(7-29), 4(6-12), 5(7-06), 37(6-36), 38(6.26), 39(6-19), 41(9- 27), 59(5-03), 155(4.14), 161 (7-32), 167(1000), 178(5-23), 179(7-33), 180(3.36), 181 (7-27), 183(6-26), 199(7-00) and 200(4-15) situated in Deh Konar, Taluka Hala, District Hyderabad being the legal heirs of deceased Tayyab son of Dhani Dino Lakho, the action of the defendants to confiscate without hearing the plaintiffs is illegal, mala fide, improper, without lawful authority, improper, without lawful authority, without jurisdiction, void ab-initio, having no legal effect in the eye of Law and is not binding upon the plaintiffs b. That to grant permanent injunction against the defendants thereby restraining them from interfering with the possession of the plaintiffs over the suit lands and dispossessing the plaintiffs from the suit lands or creating any kind of encumbrance over the suit land, directly or indirectly, personally or through their agents, servants, subordinates i.e. In any way or in any manner whatsoever; c. That the cost of the suit be borne by the defendants; d. That any other relief(s) which this Honourable Court deems fit and proper may kindly be awarded in favour of the plaintiffs;
5. Respondent / Defendant No. 3 contested the matter; filed written statement wherein denying assertions of the respondents/plaintiffs while claiming that land in question is owned by Forest Department and is entered in name of Forest Department; land remained in physical possession of forest department. Land has been declared as reserved forest by the Government vide Notification dated 26.3.1985; No.2418-B dated 26.3.1895 and No.Rev.8581 dated 28.10.1938 hence question of confiscation was never arising. In additional pleas, it was claimed that no cause of action accrued to respondents/ plaintiffs and suit was barred under Sections 42 and 56 of Specific Relief Act. The document (s) were also filed along with the written statement in support of the claim of the forest department by the defendant/applicant.
6. Learned trial court, out of pleadings of parties, framed the following Issues:-- i) Whether the suit is not maintainable under the Law? ii) Whether the suit land originally belonged to Tayyab and the plaintiffs being his surviving legal heirs are owners of the suit land? iii) Whether the plaintiffs are in lawful possession of the suit land? iv) Whether the action of defendants to confiscate without hearing the plaintiffs is illegal, mala fide and without lawful authority and having no legal effect? v) Whether the plaintiffs are entitled for any relief? vi) What should the decree be?
7. In order to prove, the respondents/ plaintiffs examined their attorney namely Ali Murad at Ex.127 who produced power of attorney at Ex.128, original field books at Ex.129/1 to Ex.129/3, land revenue receipt at Ex.130/1 to 130/13 and Photostat copies of Deh map at Ex.131 and then side was closed.
8. On other hand the appellant/ defendant examined Shahzad Siddiqui DR.F.O as DW at Ex.151 and then side was closed.
9. On conclusion of trial, the learned trial court decreed the suit and against such judgment the appellants/defendants filed appeal but the appellate court maintained the judgment and dismissed the appeal vide judgment and decree, impugned.
10. Learned counsel for applicants has, inter alia, argued that suit of the plaintiffs/appellants was hit by Section 79 of the C.P.C. So also by Article 174 of the Constitution hence was never maintainable under the law; the learned lower courts acted presumptive while deciding ownership of respondents; respondents/ plaintiffs never succeeded in establishing their cause/claim hence judgment of decree of two courts below are not sufficient to an incompetent and failed suit. In support of his contentions, reliance was placed on cases, reported as 1991 SCMR 16, Section 184 of the Act, 1967, The Rules, 1969, Muhammad Yousaf v. Muhammad Zafar (2009 YLR 90), Riazuddin v.
Muhammad Aslam [PLD 1985 Karachi-411(a)], Evacuee Trust Property Board v. Mst. Sakina Bibi [2007 SCMR 262] and Punjab Industrial Development Board v. United Sugar Mills Limited [2007 SCMR 1394].
11. On the other hand, the learned counsel for the respondents has argued that there are concurrent findings of two courts below and since scope of revisional jurisdiction is limited hence judgment and decree (s) of two courts below are liable to be stamped; the document (s), not produced in evidence, cannot be considered hence both courts below committed no illegality in responding to the material issue. He has relied upon the case laws, reported as Muhammad Bashir v. Muhammad Hussain [1994 CLC 1207], Muhammad Zaman v. Zafar Ali Khan [PLD 1986 SC 88], Farid Khan v. Abdul Lauf [PLD 1994 SC 353], Muhammad Khan v. Mst. Rasul Bibi [PLD 2003 SC 676], Province of The Punjab v. Ch. Mehraj Din & Co. [2003 CLC 504], Sardar Khan Bahadar Khan v.
Returning Officer Constituency LA-I8. POONCH-2 Civil Judge Hajira. AK [2003 MLD 284], Islamuddin v. GUI= Muhammad [PLD 2004 SC 633, 2001-(sic)], Sakhi Muhammad v. Muhammad Nasir Bashir [1999 CLC 454], Madad All v. Province of Sindh [1996 SCMR 336] Rehmatullah and others v. Saleh Khan, [2007 SCMR 729] and Muhammad Ibrahim v. District Judge Appellate Authority Vehari [1985 CLC 2644].
12. At the very outset, I would like to respond to the question of ' revisional scope'. It is settled principle of law that revisional jurisdiction is not equated to that of appellate jurisdiction because the former is meant only to correct an illegality/ irregularity (in result of misreading or non-reading of evidence), question of jurisdiction or excess of jurisdiction is involved while in the later case whole case becomes open. However, regardless of limited scope of jurisdiction it can never be presumed that such jurisdiction is without purpose and object rather the provision of Section 115, C.P.C. Vests authority to ensure no 'injustice' or 'serious prejudice' with parties goes un-attended because the Court (s) are ultimate custodian of the 'rights of parties'. To examine:-- i) illegalities/irregularities; ii) excess of jurisdiction; iii) non-exercise of jurisdiction ' are such question (s) which cannot be properly addressed without going through all the available material hence one would not be justified in demanding a stamp of confirmity by revisional court merely by saying that there are concurrent findings. I am supported in my such view with the case laws, reported as Muhammad Idrees v. Muhammad Pervaiz [2010 SCMR 5], Noor Muhammad v.
Mst. Azmat-e-Bibi [2012 SCMR 1373], Administrator, Thal Development through EACO Bhakkar V. Alt Muhammad [2012 SCMR 730] and Sultan Muhammad v. Muhammad- Qasim [2010 SCMR 1630].
13. It would be conducive to refer the issue No.2, which is the core issue to decide the fate of subject matter land, same is as under:-- ' Whether the suit land originally belonged to Tayyab and the plaintiffs being his surviving legal heirs are owners of the suit land?
' The above issue, as it was framed, was requiring proof (s) of two things.i.e:-- ii) plaintiffs, being legal heirs, are owners of suit land; ' A The burden was always upon the plaintiffs/respondents to prove the above issue. i) suit land originally belonged to Tayyab; and
14. Thus, it would be significant to examine the first part of the Issue-2 first. The plaintiffs/respondents have produced copies of field book and dhall receipts. The field book is not a 'title document' but is a simple entry which is maintained/kept by the Tapedar while visiting the site which, unless incorporated into 1.1aniabandi' (Haqan-jo-register) would create no right of ownership but would at the most show the possession at a relevant date and time. The Field book record and Dhall receipts are the document (s) which carry the signature of the Tapedar alone without any attestation or confirmation by' other Revenue Officer (s), so authorities to maintain the record of the rights. The field Book entries, so produced by the plaintiffs/ respondents, pertain to two months i.e. November, 1881 and December, 1881 although the plaintiffs respondents claimed that their predecessor-in-interest remained in possession of the land in question till early 19th Century i.e. During year 1906 to 1920. If so, why the subsequent entries of Field Book were not produced to establish continuity of possession under such claim although the subsequent entries of field book should have been collected/obtained when earlier entries were provided by the office.
Not only this, but the plaintiffs/ respondents also not produced a single document which could show that entries of such field book were transcribed/entered in record of the rights. Such non- production of the record should have been taken by the courts below adverse to the plaintiffs/ respondents within meaning of the Article 129 of Qanun-eShahadat Order.
15. Be as it may, the perusal of the record further shows that the plaintiffs/ respondents did not produce the original of these documents but have produced the true copies thereof, appearing to have been issued by the 'Field Records Office, Hyderabad Sindh'. Going into further details, it is necessary to mention here 'certified true copy' is one of the document (s), shown as 'secondary evidence' by the Article 74 of the Qanun-eShahadat Order, 1984. Needless to add that per Article 75 of the Order document must be proved by 'primary evidence' except as provided by Article 76 of the Order which reads as:--
76. Cases in which secondary evidence relating to document may be given.---Secondary evidence may be given of the existence, condition or contents of a documents in the following cases:--
(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to the process of the Court; or of any person legally bound to produce it and when after the notice mentioned in Article 77, such person does not produce it;
(b) --
(c) --
(d) --
(e) --
(f) --
(g) --
(h) --
16. The plaintiffs/respondents though produced the certified true copies of these document (s) but not through the official (s) concerned who were/are the custodian of the record. The plaintiffs/respondents also showed no reason on justification for not bringing the 'secondary evidence' on record, as required by law hence the secondary evidence, without any proper explanation for non-production of primary evidence, was not worth consideration. This aspect was entirely lost sight by both the court (s) below although the rights, interests and specifically pleaded claim of ownership of the applicants/defendants (government) was involved.
17. Moreover, it appears that the claim of the plaintiffs/respondents was that their predecessor interest namely Tayyab son of Dhani Lakho was owner of the suit land and was in possession of the same; and on his death the plaintiffs, being, legal heirs, became owners of the land in question. The plaintiffs/respondents claim that land was Katcha land and in early 19th Century during 1913-14 it was eroded by Indus River and it remained as 'Darya Khurdi' which was repaired in year 1974 when the plaintiffs/respondents again came into possession and continuing.
18. Let me specify here that right of 'Darya Khurdi' is a right which protects the interest of an 'owner' in respect of his eroded 'land or property' which is, later on, reformed and identified. In other words the owner of the lost land to the river remains the owner upon the reformation of such land if it can be identified and act of nature or other acts upon which the owner had no control will not prejudice right of owner if lost property is later reformed and identified. At this juncture, it would be conducive to refer the case of Miss Rifat Hamid Ghani and another v. Muhammad Shasul Jalil and 2 others [1987 CLC 1902] wherein it was held that:-- "9. The ratio of the above cases cited by Mr. Akhter Mahmood Khan and also of the cases cited by Mr. Imam Ali Kazi seems to be that if the land lost to the river is reformed and can be identified, the owner of the land remains the owner of the reformed land. The factum that in Sind Yak Sala leases are granted in respect of Darya Khurdi rights does not negate the above proposition, of law as Yak Sala lease is granted only during the period when the land is not identifiable by the owner at the site because of want of reformation which is also evident from the above quoted para. 16 from the judgment in the above case of Haji Nek Muhammad v. Province of West Pakistan and 12 others PLD 1966 (W.P) Kar.
314. Mr. Imam Ali Kazi is unable to produce the above circular or any law to indicate that the above consistent view of the superior courts: IndoPakistan prior to partition and during post partition period reflected in the above cited cases has been negatived or modified. In this view of the matter, even in Sind the law is that the owner of the lost land to the river remains the owner upon the reformation, of such land if it can be identified. We may observe that in the absence of any statutory provision or the custom having the force of law divesting the ownership of land from the owner on account of its having been lost temporarily because of the act of God or other acts upon which the owner had no ontrol, the legal position succinctly enunciated by the Honourable Supreme Court in the above case of Surendra Lal Depal v. Satya Tamaj Ghoshal and others, namely that whoever has land, wherever it is, whatever may be the accident to which it has been exposed, whether it be a vineyard which is covered by Lava or ashes from the volcano or a field covered by the sea or by a river, the ground, the site, the property remains in the original owner, still hold good." In view of above, I am quite safe to say that for establishing a claim of right of ownership over a property (land etc.) under right of 'Darya Khurdi' one will have to establish three facts:-- i) his ownership before eroding of the land; ii) revival of the land; iii) reformation of the land and its identification as same land;
19. Let me adid here that since the plaintiffs/respondents, claiming the ownership of one, Tayyab son of Dhani Dino Lakho therefore, the burden was always upon them to prove their assertions and claims. The plaintiffs/respondents claimed that themselves to be successors/ legal heirs of one 'Tayyab son of Dhani Lakho', who was claimed as owner of the land in question.
20. Thus, see what the plaintiffs have produced to prove their claim of ownership in respect of land in question. Since ownership before eroding is the first, and basic fact, hence it would be proper to examine what the plaintiffs/respondents have produced to prove the same. The perusal of the 'field book' would show that under column of ownership, the status of Tayyab is shown as 'raiti' The term 'raiti' is not found in Sindh Land Revenue Act but this term was used in some Acts of Nepal wherein the 'raiti' was a person hired/engaged to possess and cultivate the land for generating the revenue. His status was not one than that of 'landholder'. Let me refer here the 'Land Revenue (Special Provision) Act, 2018 (1961) whereby amendments were brought in the enactment by His Majesty's the Kind Mahendra Bir Bikram Shah Dev. The Section 2(d) thereof reads as:-- 'Raiti (landholder) in respect of and (sic) land' means Raikar landholder . (Raitan Nambariwala) who pays the land revenue in respect of that land and includes a person who is legally entitled to possess that land as Raikar landholder (Nambariwala) who pays the land revenue in respect of that land'
Hence, pertinent to say that a 'landholder' or one paying 'land revenue' does not acquire the status of 'landlord' or 'landowner' by proving or establishing his possession or mere payment of the 'land revenue'. The West Pakistan Land Revenue Act, 1967 defines 'landlord' and 'Landowner' as:-- ' Section 4(12) - 'Landlord' means a person under whom a tenant holds land, and to whom the tenant is or but for a special contract, would be liable to pay rent for that land, and shall include a lessee of such person, and the predecessors and successors in interest of such person; ' Section. 4(13) - 'Land-owner' includes a person to whom a holding has been transferred, or an estate or holding has been let in farm, under this Act, for the recovery of an arrear of Land Revenue of a sum recoverable as such an arrear and any other person who is in possession of an estate or any share portion thereof, or in the enjoyment of any part of the profits of an estate, but does not include a tenant' The position, being so, was never sufficient to prove the ownership of the predecessorin-interest of the plaintiffs/respondents particularly when the plaintiffs/respondents failed to bring on record a single document of ownership of Tayyab Lakho which is maintained by the Revenue authorities under Board of Revenue.
21. Further, the plaintiffs/respondents have produced to establish that the land, shown in the field book in name of 'raiti Tayyab' was eroded by the River, as claimed by the plaintiffs/respondents.
The perusal of the record would show that not a single document or witness has been exhibited/produced by the plaintiffs/ respondents to prove this aspect. The plaintiffs/respondents in their examinationin-chief, stated in this regard that:-- The suit land was Katcha land and early and .During the year 1906 to 1920 the suit land were snatched by Sind River Indus and same as Darya Khudi (Khurdi). Again re-appear in 1974 onward and since then...
This means that the plaintiffs/respondents speak/claim about the land which reappeared in the year 1974. Except the words of the attorney of the plaintiffs/ respondents there is nothing on record which could have been taken sufficient to believe that there had been re-appearing of the same land which the Raiti Tayyab Laldio was in possession. The Darya Khurdi right cannot be insisted without establishing eroding of the owner's land/ property and its reformation. In the instant matter, the plaintiffs/respondents could not bring evidence to prove such fact.
22. Moreover, it is manifest that what the plaintiffs/respondents have produced on record regarding reformation of their claimed eroded land and its identification to be the same land which was ereded. This, part to insist right of Darya Khurdi, is the most important aspect. Worth to add that even if one succeeds in proving first two parts i.e. 'ownership before eroding' and 'eroding of the same by river etc.' but fails in establishing that 'on reformation, proves its identification to be the same which was eroded' he/she will not be entitled to press right of 'Darya Khurdi'.
23. While examining the record in search of this aspect, I came across to an interesting factor which has entirely been ignored by the learned lower Court (s) although it was mandatory obligation and duty of the plaintiffs/respondents to have established the same. To make my point a little clear, let me refer the relevant para of the plaint which describes the 'suit land' which is reproduced hereunder:-- 'That an agricultural land bearing survey Nos.2(6-20), 3(7-29), 4(6-12), 5(7-06), 37(6-36), 38(6- 26), 39(6-19), 41(9-27), 59(5-03), 155(4-14), 161 (7-32), 167(10-00), 178(5-23), 179(7-33), 180(3- 36), 181 (7-27), 183(6-26), 199(7-00) and 200( 4-15), situated in Deh Konar, Taluka Hala, District Hyderabad, originally belongs to Tayyb son of Dhani Dino Lakho, the predecessor in interest of the plaintiffs' ' but both the documents i.e. 'field book record and `Dhall receipts' , no where, show that these documents pertain to suit land. Mere mentioning of the word 'KONAR' in the field book, purporting to be year 1881, is not sufficient to prove that these field book really mean for the suit land. The numbers, so mentioned in the 'field book' do not match with the survey numbers constituting the suit land. In absence thereof, the plaintiffs/respondents were never entitled for a declaration of ownership. It is germane to mention that how in absence of establishing rights, interests and claim one can be declared owner of the property which (per its number, description and record), prima facie, entirely different. If this practice is allowed to hold the field, it would amount allowing a license to decree the suit (s) without proof of ownership in respect of subject matter which, under any stretch of imagination, cannot be approved/stamped.
24. There is no cavil in the proposition of law that it is only the competence, and jurisdiction of the Revenue authorities to demarcate the estate and fix boundaries thereof but in instant case it is a matter of record that the plaintiffs/respondents, at no times, approached to the revenue authorities for identification of their claimed eroded land nor examined any single witness or official to prove this aspect. In absence thereof, the right of 'Darya Khurdi' of the plaintiffs/respondents, if any, cannot be entertained nor the suit land can be given to the plaintiffs/respondents against such claim. Although, per Article 118 of the Qanun-e-Shahadat Order the failure of the plaintiffs/respondents to prove above ingredients for 'Darya Khurdi rights' was sufficient to answer the Issue No.2 in negation but both the courts below held otherwise while basing their such opinion with reference to non-production of documents by the defendants/applicants although it is well established principle of law that failure or weakness of rival shall not be taken as a circumstance to prove the case of plaintiff rather the plaintiff shall, at all times, has to stand on its own stance.
25. Let me examine such opinion of both the courts below with another angle. Before saying so, I cannot lose sight of the attitude of the concerned Deputy District Attorney under whom the official of the department of applicant/defendant No.1 was examined. Photo copies of all the title document (s), showing ownership of the Forest Department, were submitted along with the written statement and even were referred during examination-in-chief but the concerned Deputy District Attorney did not attempt to produce the same properly, who, otherwise, is solely appoinfed' for defending the interests of the government, properly rather such a Deputy District Attorney failed in defending the government interest for which his appointment was made. However, at this juncture, I must refer here some portion of examination-in-chief of solely examined official which are:-- 'I see annexure attached with written statement are the Gazzate (gazette) notification dated 26/3/1895, 28/10/1938, 21/8/1893. The suit property is already mentioned in Deh Form No.1".
' These document (s) and even revenue record, produced through, written statement, came onto the record but both the court (s) below did not appreciate the legal position that any finding onto the Issue-2 was likely to cause serious affect upon these document (s) although no such issue in this regard was framed. The Court cannot pass a judgment and decree which, either directly or indirectly, effects the status of a document (title) without framing a proper issue in respect of legal status of such a document. It is a matter of record that no such issue regarding title documents, showing the suit land to be forest land, was ever framed by the learned trial court Judge.
26. Now, I would like to come to other part of the issue. To prove the pedigree of a person existing in the year 1881, there is nothing on record except the words of the attorney of the plaintiffs/respondents. He produced no document to establish a link between the plaintiffs/respondents and Tayyab Lakho. The sole witness, examined by the plaintiffs/respondents, uttered not a single word in this regard which is evident from his examination-in-chief which is reproduced hereunder:-- "I know the plaintiffs. The suit land one mile away from me. The plaintiffs are cultivating the suit land as owner. The suit land cultivated by the plaintiffs since 32 years, previously the suit land was arrodate (eroded) by the River Indus. Then plaintiff again cultivated the same. The government has never in possession of the suit land. The plaintiffs are the owners of the suit land, and also they are in possession of the suit land'.
' Thus, it is safe to say that except the mere words of attorney of plaintiffs to prove a pedigree of more than 1 century was never sufficient for believing that the plaintiffs/ respondents proved such claim. Here, it is necessary to mention that in the instant matter the defendants were the government officials who cannot be believed to have an interest to deny a pedigree of a private person, therefore, both the lower courts were entirely wrong in giving weight to silence of the applicants/defendants in this regard. Where the rival is such which has no interest to deny a claim of the plaintiff shall not absolve the plaintiff from his legal and bounden obligation to prove his claim, as is required by the law. The learned lower court (s) did not bother to order for spot inquiry or even not ordered for publication before stamping the claimed pedigree which, steps, should always be taken where the rival is one having no interest in denying such pedigree. Such state of affairs also show how both the learned lower courts have acted while responding to the Issue No.2.
27. In view of above discussion, I am of the clear view that findings of both the court below in respect of the Issue No.2 are entirely incorrect rather result of improper appreciation of evidence, material and record. Accordingly, the findings on this Issue are set aside and held the issue as not proved.
28. Further, the plaintiffs/respondents cannot claim to be in lawful possession of the land in question where they failed to establish that it was the same land which they claim to be belonging to raiti Tayyab son of Dhani Dino Lakho. Dhall receipt is indicative of possession and even if the defendants/applicantsadmitted the possession of the plaintiffs respondents over the land in question yet the burden was upon the plaintiffs/respondents to first have proved ownership. Since the plaintiffs/ respondents never established their ownership in respect of the land in question hence the possession of the plaintiffs/ respondents was also not liable to be stamped as lawful, as wrongly held by both the courts below.
29. So far as to 'maintainability of the suit', it is manifest that through instant us the plaintiffs/respondents had claimed ownership in respect of the suit land while claiming confiscation of the land by defendants/applicants as illegal but it is also a matter of record that through written statement the defendants/applicants had claimed the land to be 'forest land with reference to following document (s):-- i) copy of Bombay Govt. Gazette dated 24.8.1893; ii) copy of Notification No.2418 dated 28.3.1895; iii) copy of Notification No.24188.Dt:.
28.3.1985 iv) copy of Gazette Notification of Revenue Deptt: No.Rev-8581 dated 28.10.1938 copy of Deh Form of Deh Kunar, Taluka Hala vi) copy of village form-VV-B of Deh kumar These documents, prima facie, show title in favour of the Forest Department but the plaintiffs/respondents, despite notice of claim of the Forest Department through these documents, did not challenge the legality of these document (s), meaning thereby that he was not interested in getting these documents (entries in record of the rights) cancelled or adjudged to be null and void, as provided under section 39 of the Specific Relief Act. Such a us would result in letting the department go with their title document (s) which are duly maintained in the record of the rights but same time the plaintiffs/respondents have been declared owners of such a property by the inferior Courts. Legally this can not prevail. Further, the plaintiffs/respondents also not sought Mandatory relief for giving them their such ownership title in record of the rights, particularly when such was to take place of an existing title in the record of the rights. The position, being so, make it quite obvious that suit of the plaintiffs/ respondents was not having complete relief, available to them which they were required to make within meaning of the Order II of the Code.
30. Both the lower court (s) also erred in law that suit of the plaintiffs/respondents in such eventuality, was barred under providing clause of Section 42 of the Specific Relief Act.
31. Further, the plaintiffs/respondents did not sue the province properly as the Province of the Sindh was sued through Deputy District Officer (Revenue), Hyderabad although the law requires that the Province should be sued through the Secretary to that department. The Deputy District Officer (Revenue), in no way, is the higher authority of the Forest Department nor qualify the meaning of head of the District which is the 'collector' (Commissioner) therefore, even the suit of the plaintiffs/respondents was not maintainable under section 79 of the Code p which is mandatory in its nature.
32. In view of above discussion, I am of clear view that the judgments and decree (s) of both the Courts below are nothing but a pure case of misreading rather non-reading of the available material and settled principle of appreciation of the evidence hence the same cannot be left to continue so. Accordingly, the judgment (s) and decree(s) of both the courts below are hereby set aside and in consequence thereof the suit of the plaintiffs/respondents is hereby dismissed.