JAMAL KHAN MANDOKHAIL, J----The appellants filed a suit for declaration and permanent injunction against the respondents, on 17th May 1999, in the Court of District Judge, Zhob. In the plaint, it was stated that the appellant is an owner of the land, described in the plaint, herein after called as the land in question. The appellant alleged that the respondents are not only interfering into the land in question, but have also restrained the appellants/plaintiffs from utilizing and occupying the same. Through his suit, it is prayed as under: "It is accordingly respectfully prayed that an order/decree in favour of the plaintiff and against the defendant may kindly be passed to the following effect:-- a) to declare that the defendant has no right and title to interfere in the peaceful possession of plaintiff' over the property in question, b) to restrain permanently the defendant and direct him not to interfere, XX dig the ditches, make the firing range over the property in question or do not carry but any kind of work over the property in question, c) any other relief as deemed fit and proper in the circumstances of the case may also be awarded to plaintiff with cost of the sui1t in the interest of justice, equity and fairplay."
2. The suit was contested by the respondents on legal as well as factual grounds, through written statement and alleged that the land in question is owned by the Army, with which the appellants have no concern. The respondents relied upon a Notification No.DP(Home)-15(I)180 dated 20th August, 1981 and subsequent Notification S.R.O.128(1)12000 dated 4th March, 2000, issued under the Maneuvers, Field Fires and Artillery Practices Act, 1938 (the Act), therefore, no one, including the appellants is permitted to enter into or to do any type of work in it. In the written statement, it is stated that the appellants/plaintiffs have no locus-standi to file the suit.
3. The trial Court, after framing issues, call the parties to produce their evidence. The appellants in support of their claim, produced three witnesses, exhibited documents mostly related to previous litigations and lastly recorded their statements through attorney. In reply, the respondents produced the notifications through a witness and recorded a statement of the representative. The trial Court dismissed the suit by means of the judgment and decree dated 23rd June 2009, hence this appeal.
4. Learned counsel for the appellants stated that the land in question situated in a tribal area, which belongs to the appellants and devolved upon them from their forefathers. He added that it was the responsibility of the Government to have prepared the revenue record of the area, by conducting settlement proceedings, but the needful has not been done, as such, there is no revenue record of the area, for which, the land owners cannot be held responsible. He stated that though the property in question is unsettled, but it does not mean that it is not ownerless property. rather the same belongs to the appellants. According to him, the ownership of the appellant is proved through the judgments/orders of competent Courts, passed from time to time, supported by their longstanding possession, therefore, they have all the right to utilize the property in question. The learned counsel in the end stated that the respondents are relying upon the above referred notifications, which simply authorizes the Pakistan Army to use the property only for a limited purpose and for a specific period, strictly in accordance with the provision of the Act of 38, which does not make the respondents an owner, nor permits them to restrain the owners and occupiers of the property from utilizing the same. The learned counsel in the end added that the trial Court has failed to consider the relevant provision of law, the material and the evidence available on the record, which amounts to mis-appreciation and non-appreciation of the law, facts and evidence, hence committed an illegality, therefore, the impugned judgment and decree are liable to be set aside. The learned counsel relied upon a judgment passed by this Court in C.P.
No.654 of 2013.
5. The intervener argued that the appellants alone are not the owners of the property, rather it is a joint property of all the successors of late late Khudai Nazar. According to him, there are village, schools, mosques etc. established upon the land in question since decades, whereas, the open land is being used by the inhabitants of the village, as pasture and they get other benefits from the same as well. He stated that the respondents are not the owner of the property nor can they restrain the inhabitants of the area from the same.
6. Learned DAG opposed the contention and stated that the land in question is an unsettled land, whereas, the appellants have not succeeded to prove their ownership, therefore, they have no locus-standi to file the suit. According to him, the property in question has been assigned by the Federal Government to the Pakistan Army for execution of military maneuvers, field firing and artillery practices, vide notifications mentioned above, issued under the Act of 1938, therefore, the appellants or any other person are not entitled to interfere in it. The learned DAG stated that since the appellants have failed to prove their entitlement in respect of the property, therefore, the suit has rightly been dismissed by the trial Court.
7. I have heard the learned counsel for the parties and have gone through the record. On the basis of the material available on the record, the following points are framed for determination of the appeal: a. what is the locus-standi of the appellants to file the suit in respect of the property in question? b. What is the status of the respondents, with regard to the land in question? And whether they can restrain the appellants the inhabitants of the area from using the land?
The appellants claim to be owners in occupation of the property in question, on the basis whereof, they have filed the present suit. During the pendency of this appeal, a Civil Miscellaneous Application Bearing No.536 of 2010 was filed by an intervener, which was allowed on 5th of November 2015. In the application the intervener alleged that this is a huge and joint property, which belonged to one Khud-ae-Nazar, who was the predecessor of the appellants, the intervener and others, upon whom, the property in question has been devolved. Admittedly, settlement of the area has not been conducted by the revenue authorities, therefore, there is no revenue record of the land in question. However, the documents available on the record would reveal that previously some litigations were carried amongst the inhabitant of the areas and between the appellants and the respondents, from time to time and some of these litigations pertains to a period, before the creation of Pakistan. Facts and circumstances prove that the land is being claimed by the appellants, the intervener and several others and they are occupying the same as well. Though the Government did not conduct a settlement proceeding in the area to maintain a record, but it does not dis-entitle a person to be owner of an unsettled property. If he/she proves his/her ownership through other sources or evidence, such claim of an ownership and entitlement shall not be disbelieved merely because of non-availability of revenue documents. The evidence and the documents available on the record would shows that a large portion of the property has been occupied by a number of people of the area, including the appellants and the A intervener. It is established that several houses, official and religious buildings are built thereon for decades. The open area is being used as pasture and for other. beneficial purposes by the people of the areas.
Under such circumstances, if an owner or occupier of the land in question has any grievance, he/she can approach a competent court of law. Since the appellants have claimed to be owners in possession of the, property in question and alleged their grievance of interference by the hands of the respondents, therefore, they have a locus-standi to file this suit.
8. The claim of the respondents over the land is based upon the above referral notification, issued under the Act of 1938, which is reproduced herein-below: "S.R.O. (1)/2000. - in exercise of the power conferred by subsections (1) and (2) of section 9 of the maneuvers, field firing and Artillery Practices Act, 1938 (V of 1938), the Federal Government is pleased to define the area specified in the schedule below as the area within which they carrying out of field firing and artillery practices at Zhob Field Firing Range, as well as Maneuvers connected therewith may-be authorized for a further period of one hundred years with effect from the date of issue of this notification.
SCHEDULE RANGE BOUNDARIES ZHOB FIELD FIRING RANGE.
1. Range. The area Zhob-Shinghar bounded by grid references (523688) to (528718) to (540755) to (580800) to (580820) to (655820) to (657783) to (645777) to (638753) to (610730) to (600725) to (592699) to point 5152. From (5768) to trig point 5194 (5567) to (530637) to (520640) (Reference Map Sheet, 1958, 1,50.000 Sheet Number 59 B/6, 7, 10 and 11).
2. Maneuvers Area. (The area from which guns may fire on the range). Area between road Zhob- Mir Ali Khel and Roaz Zhob-Shinghar south of the reference line from grid references (523686) to (565670) and area bounded by grid references (550750) to (600750) to (600720) to (5507)
(Reference Map Sheet 1958, 1,50,000 sheet Number 39 E/6, 7,10 and 11).
3. Additional Maneuvers Area. Area west of reference (sic.) Zhob Mir Ali Khel bounded by the following grid reference. (sic.) point 4467 (5271) to (500720) to (500) to mile (sic) (519649) inclusive (Reference Map Sheet, 1958, 1,5 (sic.) Sheet Number 39 E/6, 7, 10 and 11).
2. The area of Zhob Field Firing Range as specified in this notification has been reserved for the Defence Force for firing and maneuvers purposes subject to the following conditions, namely:-
(a) It shall be ensured that no firing including of small arms takes place in the maneuvers area; and
(b) the Federal Government reserve its rights to cancel this facility at any time after serving a notice of three years without assigning any cause and after compensating for the construction made by the army authorities."
Though under the Act of 1938, it is the Provincial Government to issue such notification, but it was the Federal Government, which issued the notification, providing facilities for military maneuvers, field firing and artillery practices over an area specified therein, for a specific period. The power has been exercised under subsections (1) and (2) of section 9 the Act, which is reproduced as under: "9. (1) The Provincial Government may, by notification in the local official Gazette, define any area as an area within which [the carrying out)' of field firing and artillery practice may be authorized.
(2) The Provincial Government may, by notification in the local official Gazette, authorize the carrying out of field firing and artillery practice throughout a notified area or any specified part thereof 2 [and may, if it thinks fit, specify the period or periods during which such field firing and artillery practice shall be carried out]."
9. The Act of 1938 provides that before starting the practices, the owners and the occupiers of the notified land should be informed about the time and duration, during which, the practices would commence and continue, enable the people of the area to shift to a safer places. The notification issued under the Act of 1938 does not create title or permanent occupancy right nor it is acquainted with the lease, rather, it just allows the Army to utilize the notified property for a limited purpose and for a specific period. For utilizing the notified land, the Government has to frame rule as provided by Sub-Clause (b) of section 13 of the Act of 1938, which is reproduced as under: "13. (b) regulating the use under this Act of land for manoeuvres or field firing and artillery practice in such manner as to secure the public against danger and to enable the manoeuvres or practice to be carried out without interference and with the minimum inconvenience to the inhabitants of the areas affected; The making of the rules is intended to secure the rights of the public. It has been ensured that the practices must be carried out with a minimum inconvenience to the inhabitants of the area so affected. It is thus an obligation of the beneficiary of the notification to refrain from interference into the possession of occupier of the notified land. Reliance has been placed on the case of H. V.
Sri Niras v. Air Force station reported in (AIR 2001 Karnataka 479). Relevant portion of the judgment is reproduced as under: "The purpose of notifying the land under S.9 of the Act by declaring it as a danger zone, is to avoid any casualty to all persons and domestic animals during the times when the discharge of lethal missiles is taking place or there is danger to liffor health. So, under the provisions of the Act, drums and also by means of affixture notifying the general public about the intention of the defendant to make use of the land situated in danger zone, to prevent any casualty to the life of a person or domestic animal during the course of the practice. By making use of the notification under S.9 of the Act, defendant cannot prevent the lawful owners of the property or land either to make use of for cultivation or for any other purpose. Therefore, there cannot be any objection of the defendant to enclose the land in Sy.No.43 by the plaintiffs by putting a compound at their cnst since the land in question is not acquired by the defendant. By virtue of the notification, during the course of the practice of field firing and artillery, plaintiffs or anybody claiming under them are prohibited from enjoying the property. But there is no prohibition for the plaintiffs to construct compound and the defendants cannot object for the same."
10. The Act of 1938 has secured the right of the people, which has been elaborated in the above referred judgment. Besides, the Constitution of the Islamic Republic of Pakistan, 1973 defends the rights of the people and pressurizes those, with power, to respect rights and secure justice.
According to Article 24 of the Constitution, "No person shall be deprived of his property, save in accordance with law" Since the notification has been issued under section 9 of the Act of 1938, which does not deprive the appellants and others from utilizing the land in question, therefore, the status of the respondents is just of a temporary beneficiary by using the land in question only for maneuvers, field firing and artillery practices. Hence, the respondents have no authority to restrain the appellants and other occupants from using the land in question, nor can interfere into their rights, except during the period, when the execution of maneuvers, field firing and artillery practices are going on in accordance with Act of 1938. After completion of such practices, the people of the area are entitled to resume their routine life over the land in question, whereafter, interference, in any manner, with the affairs of the appellants and other occupants and restraining them from the land in question by the respondents, is illegal.
Thus, in view of above, the appeal is allowed. The judgment and decree dated 23rd June 2009, passed by the District Judge, Zhob are reversed, resultantly, the suit is decreed. It is declared that the Army can utilized the notified land only for execution of military maneuvers, field firing and artillery practices, with a special care of the safety and security of the people. However, during the period when the practices are discontinued, the respondents shall not interfere into the peaceful possession of the appellants and other occupants, over the land in question, nor can they retrain the appellants and the inhabitants of the area from occupying and utilizing it. In case of increase in the population in the notified area, the respondents may change the firing range to secure the people and to avoid any unwanted and unfortunate incident. The office to prepare a decree sheet accordingly.