ZAFAR AHMED RAJPUT J. This Civil Revision Application is directed against the judgment and decree, dated 07.10.1998 and 14.10.1998 respectively, whereby learned Ist Additional District Judge, Khairpue while allowing Civil Appeal No. 48/1989 (New No. 282/1993) set aside the judgment and decree, dated 31.05.1989, passed by learned Senior Civil Judge, Gambat in F.C. Suit No.34/1988, filed by the applicants.
2. Briefly stated, the facts of the case are that the applicants herein filed aforementioned civil suit against the respondents for declaration and permanent injunction in respect of agricultural land, admeasuring 172-38 acres, bearing Survey No.329, situated in Deh Newaro Katcho ("the Suit Land") claiming therein that the suit land originally belonged to their ancestors and it was reserved as "Muhari" (Shikargah) of the Rulers of the former Khairpur State, known as Agan Muhari, however, the applicants remained as Haris (peasants) of the suit land after the death of their ancestors. It was further alleged that in the year 1955, the forest officer of Khairpur State passed an order declaring the suit land as the property of Rulers of the former Khairpur State, asserting that it was not the forest land, however, on 27.11.1969, .the suit land was resumed from Khata of the Rulers of the former Khairpur State and reverted to the pool of Sindh Land Commission for disposal; whereafter some of the applicants got lease of some portions of the suit land from the Assistant Commissioner in the years 1969-70, 1972 and 1979-80, but the forest department started claiming the suit land to be the land of Agan Forest and in the year 1984-85 granted six years lease of the land to the respondent No.5 without knowledge of the applicants. It was claimed that the Agan Forest is situated in Survey No.279, which is at a distance of about one mile from the suit land and the forest department did not claim the suit land as the forest land prior to 1983-84, which claim of the forest department came into the knowledge of the applicants about one week before filing of the suit and even the forest department did not issue any notice to the applicants restraining them from cultivating the suit land. It was also claimed that the applicants have got sanctioned share-list of the suit land on their names as their possession is shown in Charakh Shumari prepared by the Tapedar for the year 1985-86. It was case of the applicants that about one month prior to the filing of the suit, respondent No.5 came on the suit land and directed the applicants to vacate it, so also, the staff of the forest department tried to dispossess them from the suit land by force and lodged report with the police. It was further case of the applicants that since the suit land was a resumed land, they being sitting tenants were entitled to the grant of lease on Harap rules from the respondent No.2 having preferential rights over the suit land.
3. On being served with the summons, respondent No.3 (Divisional Forest Officer, Khairpur) contested the suit by filing written statement denying the claim of the applicants. It was stated that the suit land was transferred to the forest department with possession in the year 1959 by the Deputy Commissioner, Khairpur. It was also stated that the suit land was declared as the forest land in the year 1943 by the Revenue Officer of the former Khairpur State and it was resumed from the Rulers of the Khairpur State and transferred to the forest department by the Deputy Land Commissioner, Khairpur in the year 1973. It was admitted that an area of 160 acres of the suit land was leased out for a period of six years from Rabbi 1983-84 to Khareef 1989 to respondent No.5, who made payment of lease money for only two years and thereafter committed default, hence his crop was attached as per terms of the lease. Against that, the applicants and respondent No.5 made resistance, hence FIR was lodged against them. It was also stated that after delivery of possession to the forest department in the year 1959, the Revenue authorities have no control over the suit land to grant lease.
4. Respondent No.5 also contested the suit by filing written statement, wherein fie while admitting the claim of the applicants has stated that the Agan Forest is situated in. Survey No.279 and he was granted land by the forest department out of said survey number .
5. Out of pleadings of the parties, learned trial Court framed the following issues:
1. Whether the suit is not maintainable according to law?
2 Whether the suit is not in proper form?
3. 'Whether the suit is time barred?
4. Whether the suit is bad for misjoinder and non joinder of necessary parties?
5. Whether the suit land is ancestral property of the plaintiff?
6. Whether the suit land originally belonged to Ruler of former Khairpur State and was resumed under land reforms?
7. Whether the suit land belongs to Forest land and known as "AGAN FOREST" and revenue department had no dominant over it?
8. Whether the 160 acres of suit land was leased out to defendant No.4?
9. Whether the grant if any made by Revenue Department in favour of plaintiff is nullity and not binding upon the Forest department?
10. Whether the Forest department took over the possession of suit land in 1959?
11. Whether the land was secretly disposed of by the Forest Department to the defendant No.4?
12. Whether the plaintiffs are entitled for the relief claimed?
13. What should the decree be?
6. Learned trial Court after recording pro and contra evidence and hearing the learned counsel for the parties decreed the suit in favour of the applicants vide judgment and decree, dated 31.05.1989. Against that, the respondent No.1 preferred Civil Appeal No. 48/1989 (new No. 282/1993), which was heard and allowed by learned 1st Additional District Judge, Khairpur vide judgment and decree, dated 07.10.1998 and 14.10.1998 respectively. It is against those findings of the learned appellate Court, instant Civil Revision Application has been preferred by the applicants.
7. Learned counsel for the applicants has contended that the learned appellate Court failed to exercise its jurisdiction while passing the impugned judgment and decree, which are result of misreading and non-reading of oral as well as documentary evidence on record; that learned appellate Court has failed to consider that the respondent No.3 was the only contesting official defendant, but he did not prefer any appeal against that judgment and decree passed by the learned trial Court in favour of the applicants and therefore the appeal impugning the judgment and decree of the trial Court filed by the District Government Pleader on behalf of respondent No.1, who is mere an agent of the Government of Sindh and not a Secretary or Collector to the Government, was not maintainable in the law; that since the respondent/ defendant No.1, failed to file written statement in denial of the claim of the plaintiff, it loses right of appeal; that even written statement filed by the Range Forest Officer on behalf of the respondent No.3 cannot be considered a written statement filed on behalf of respondent No.3 i.e. Divisional Forest Officer Khairpur as neither the Range Forest Officer was the party in the suit nor respondent No.3 delegated any authority to him for filing of the written statement; that the appellate Court failed to frame the points for determination, as required under Order XLI, Rule 31, C.P.C. while passing the impugned judgment, hence same is not sustainable under the law; that the judgment and decree passed by the learned trial Court in favour of the applicants being well discussed, covering all the issues involved in the suit, is liable to be maintained by this Court in its revisional jurisdiction by setting aside the judgment and decree of the learned appellate Court.
8. On the other hand, learned State Counsel while supporting the impugned judgmen t and decree of the appellate Court has maintained that the learned trial Court passed the judgment and decree by misreading and non-reading of the evidence on record and overlooking the fact that the suit land belongs to the Forest Department and that the applicants have no right to get the same on lease so also neither revenue department nor any other department has any authority to lease out the suit land to any person; that the learned trial Court failed to consider that the applicants being trespassers cannot claim any right over the suit land, hence appellate Court rightly set aside the judgment and decree of the trial Court after considering the evidence on record; therefore, the findings of the appellate Court requires no interference of this Court; that since the appellate Court recorded its findings issue- wise on all issues framed by the trial Court, re-assessing the evidence on record, there was no necessity of framing the points for determination in terms of Order XLI, Rule 31, C.P.C; that even the suit of the plaintiffs was not maintainable as the Province of Sindh was made party in the suit as defendant No.1 through District Government Pleader in violation of sub-clause (1) of Clause (b) of subsection (1) of Section 80, C.P.C. which provides maintaining of a suit against provincial Government through a Secretary to that department or the Collector of the District, and the very maintainability of the suit was challenged by the official defendant No.3 in the written statement, upon that trial Court framed Issue No.2, but the trial Court as well as the appellate Court failed to examine the maintainability of the suit in its true perspective and in this regard the appellate Court recorded its reasons that the said objection was not taken by the parties before the trial Court ignoring the fact that the legal issue can be raised at any stage of the matter including one that of appeal.
9. Learned counsel for the respondent No.5 has contended that after expiry of lease period, the respondent No.5 has no interest in the matter .
10. Heard learned counsel for the parties and perused the material available on record.
11. It emerges from the record that the pleadings of the applicants are self-contradictory. On the one hand, they have claimed in the plaint that the suit land originally belonged to the Ruler of former Khairpur State, and was known as Agan Forest which was resumed by Deputy Land Commissioner in the year 1969 and at the same time they have claimed the suit land as their ancestral land. Hence, the applicants cannot be allowed to blow hot and cold in same breath as it would amount to approbation and reprobation. It is an admitted position that the suit land earlier belonged to Ruler of former Khairpur State, who surrendered the same to the Government under land Reforms in the year, 1969 and it was resumed by the Government; hence the claim of applicants that the suit land was their ancestral land is without any substance.
12. It has been claimed by the applicants that the Agan Muhari is situated in Survey No.279, which is at a distance of about one mile from the suit land; hence the same is not part of said forest. It is an admitted position (paragraph-11 of the pliant) that the suit land was leased out in the year 1984-85 for six years by the forest department to respondent No.5. DW Niaz Ahmed, Range Forest Officer, (Exh. 46) has also produced the application of the said respondent (Exh.49). which shows that the said respondent had applied to the Revenue Minister for lease of Forest Land in Agan Muhari. There is no denial either from the respondent No.15 or the applicants that this application was not moved by respondent No.5, who is brother of applicants Nos.7, 9, 10 and
11. Admittedly , there is no other forest having name of "Agan Muhari" and even plaint shows that the suit land is known as "Agan Muhari". The application of respondent No.5 also shows the location of suit land in Agan Muhari; hence, the claim of the applicants that the suit land is situated at the distance of one mile from "Agan Muhari", and the same is not part of it, has no substance.
13. It has also been claimed by the applicants that since the suit land is a resumed land, they being sitting tenants were entitled to the grant of lease on Harap rules from the respondent Not (Deputy Commissioner, Khairpur) having preferential rights over the suit land. While, forest department claims that the suit land is forest land. The respondent No.2, who is also Deputy Land Commissioner of District Khairpur, has not disputed the claim of the forest department. DW Niaz Ahmed, (Exh.46) has deposed that the forest department took over the possession of suit land in the year 1959. The letter of respondent No.2, dated 28.07.1973 addressed to DFO, Khairpur (Exh. 49) shows that an area of 172-28 acres situated in Deh Newaro Taluka Gambat and other lands mentioned in the said letter was transferred to forest department, vide letter dated 21.10.1959. The said letter also acknowledges the payment of price of the land made by the forest department, which further shows that an area of 172-28 acres was transferred to forest department in Deh Newaro, but on site the land was 172 acres and there was shortage of 28 ghuntas. The respondent No.2 in his said letter has clearly mentioned that there is no shortage of land on site and that it was not correctly measured by the forest department. Agan Forest is also situated in Deh Newaro Katcho and according to plaint its area is 172-28 acres. This lands more or less tallies to the land shown in the said letter of respondent No.2. Hence, the learned appellate Court has rightly concluded that the suit land belonged to forest department, which is known as Agan Muhari (Forest) and the revenue department has no concern with it and thus the applicants cannot claim any preferential rights of leasing out the same to them.
14. Learned counsel for the applicants has raised question over the maintainability of the civil appeal filed before the appellate Court by the respondent No.1 (Province of Sindh) through District Government Pleader, Khairpur on the ground that it should have been filed by the concerned Secretary to Government. Applicants had themselves sued the Province of Sindh through District Government Pleader, Khairpur failing to comply with the provisions of section 79, C.P.C. and Article 174 of the Constitution of Islamic Republic of Pakistan, 1973, both of which require that in a suit filed against the Government, the authority to be named as a defendant is to be the Province. Since the suit was filed in the present case against the Provincial Government, the Province could be sued through the concerned Secretary to the Government. Reliance in the regard may be placed on the case of Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner (1999 SCMR 16). Obviously, there had been no compliance with the said provisions when the suit was filed by the applicants, thus the suit was itself not maintainable in law. It has been observed in the above cited case by the apex Court that the failure of the party to sue through a proper person is a defect which goes to the root of the matter. The suit of the applicants was; however, decreed by the trial Court in their favour, and it was the same person through whom Provincial Government of Sindh was made party in the suit that filed civil appeal i.e. District Government Pleader, Khairpur, which was allowed by the appellate Court. Now the applicants cannot be allowed to take benefit of their own wrongs of adding Province of Sindh, through District Government Pleader, Khairpur as party in the suit by challenging the competency of respondent No.1 to maintain the appeal. I also do not find any weight in the contentions of learned counsel for the applicants that since the respondent No.1 failed to file any written statement in denial of the claim of the plaintiff, it lost its right of appeal. In support of his contentions, the learned counsel has failed to cite any law. It is well-settled principle of law that failure of a defendant to file written statement within stipulated period or on the day fixed by the Court, entails striking off his defence in terms of Order VIII, R.10, C.P.C. The defendant; however, in absence of his written statement, can cross-examine the plaintiff's witnesses and lead evidence to disprove facts stated in plaint. So far the right to file an appeal is concerned, suffice it to say that any aggrieved person, whether or not he was party in a lis, has the right to approach an appellate forum. Reliance in this regard may be made to H. M. Saya & Co. v. Wazir Ali Industries Ltd. (PLD 1969 SC 65) and Qazi Muneer Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others (2019 SCMR 648). The contentions of learned counsel for the applicants with regard to filing of written statement by the Range Forest Officer on behalf of the respondent/defendant No.3 appears to be misconceived. It is reflected from the written statement that it has been filed by one Niaz Ahmed Khaskheli, FRO, Gambat on behalf of respondent No.3 (Divisional Forest Officer, Khairpur) on being authorised by the said respondent and such authority was annexed in original with the written statement. Niaz Ahmed also appeared as witness and was examined as D. W-1, but his authority was not challenged by the applicants in cross- examination. So far the contention of learned counsel for the applicants with regard to failing of appellate Court to frame the points for determination, as required under Order XLI, Rule 31, C.P.C. is concerned, it can be seen that the learned appellate Court has recorded its judgment in respect of each issue framed by the trial Court comprehensively wherein all material points in controversy have been addressed; hence, the contention of learned counsel for the applicants in this regard has lost force.
15. For the foregoing facts and reasons, I do not find any justification to interfere with the well-reasoned judgment of learned appellate Court. The instant Civil Revision Application is accordingly dismissed with no order as costs.
16. Above are the reasons of my short order dated 17.05.2019, whereby instant Civil Revision Application was dismissed.