CH. MUHAMMAD IBRAHIM ZIA, C.J.--- This appeal by leave of the Court has been preferred against the judgment and decree of the High Court dated 10.01.2017, whereby the appeal filed by the appellants, herein, has been dismissed.
2. The precise facts of the case are that the plaintif f-respondents, herein, filed a suit for declaration-cum-perpetual injunction against the defendant-appellant s, herein, in the Court of Civil Judge, Muzaf farabad on 11.08.1996. It was stated that the land bearing Khewat No.92, Khata No.292, survey No.592/ 338, measuring 25 kanal, situate at village Gan Chatter , Tehsil and District Muzaf farabad was entered in the revenue record as crown land. The said land was colonized before old settlement by their forefather , Nawab son of Hayat, in Dogra regime which was alienated in their name through Council Order No.38/C in the year 1944. Thereafter , the land in dispute was transferred to plaintif fs after the death of their father which is continuously under their ownership and possession. It was further claimed that upon the disputed land the plaintif fs made improvements in the shape of construction of houses and plantation amounting to Rs.20,00,000/-. It was further stated that in past, crown land of revenue department was transferred to Forests Department by the Government, however , the land under dispute was never transferred. It was stated that Forests Department had also issued no objection certificate in favour of plaintif fs, hence, said department has no nexus with the disputed land. It was maintained that defendants are determined to obtain possession of the disputed land from the plaintif fs, therefore, they are constrained to file the suit. The suit was resisted by the defendants through written statement whereby the claim of the plaintif fs was refuted. The trial Court, after necessary proceedings, partly allowed the suit filed by the plaintif fs to the extent of perpetual injunction vide judgment and decree dated 25.03.2005. Against the aforesaid judgment and decree of the trial Court, an appeal was preferred before the learned Additional District Judge, Muzaf farabad which was dismissed vide judgment and decree dated 03.09.2007. The second appeal filed before the High Court met the same fate with some modification vide impugned judgment and decree dated 10.01.2007, hence, this appeal by leave of the Court.
3. Mr. Maqsood Ahmed Sulehira, Advocate, counsel for the legal heirs of one Muhammad y Qasim has filed an application for arraying them, as respondents in the appeal.
4. The examination of the record reveals that Muhammad Qasim was party in the case upto the High Court and during the litigation he died. Even otherwise, the other party has no objection, therefore, while accepting this application the legal heirs of Muhammad Qasim (deceased) are arrayed as respondents in the appeal. The of fice shall make the necessary correction in the title of the appeal.
5. Mr. Muhammad Hanif Khan Minhas, Advocate, counsel for the appellants after narration of necessary facts submitted that the judgments and decree s of the Courts below are against law and facts. Admittedly , the nature of land is khalsa and according to the special law dealing with the khalsa land, the grant of decree for perpetual injunction is not permissible, which amounts to refrain the authority from performing the legal functions and exercising the powers vested by law. He further argued that khalsa land is admittedly under the possession of the Forests Department. The learned High Court on one hand modified the judgment of the Court below but at the same time imposed the condition that the Forests Department shall not take the necessary steps, which is against law. Moreover , according to the Forests Regulations and other relevant rules and laws, the Forests Department is authorized to take necessary stapes for protection of the khalsa land which is under forests. Thus, the impugned judgment is not consistent with the law , the same is liable to be set aside.
6. Conversely , Sardar Pervaiz Akhtar , Ch. Shabir Ahmed and Mr. Maqsood Ahmed Sulehria, Advocates, counsel for the respondents submitted that the appellants have no locus standi to file the appeal. The High Court has already modified the judgment, however , due to filing of appeal their application for regularization of Nautor has not been finalized. Thus, this appeal has no substance. So far as the argument of the counsel for the appellants that the condition imposed upon the Forests Department is illegal, is concerned the same has no substance, as according to the law on the subject only the Government or Collector is empowered to take necessary steps and actions relating to the khalsa land, whereas, the Forests Department is not vested with such powers. The appeal has no substance, the same merits dismissal.
6. We have considered the arguments of the counsel for the parties and perused the record made available. So far as the status of the land being khalsa is concerned, the same is an admitted fact and all the Courts below have recorded findings of facts in this context. The possession over the same by the Forests Department is also admitted by all the parties. The High Court while modifying the judgment has passed the following decree:- "It is ordered that the instant appeal is hereby dismissed. The judgments and decrees under challenged, however , shall be deemed as modified in the manners that land in question is crown land, hence, respondents-plaintif fs cannot be allowed to remain in possession thereof for indefinite period witho ut obtaining Proprietary Rights Transfer Order , as per Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land (Amendment) Act, 1989. The respondents-plaintif fs, therefore, will be at liberty to move the concerned Collector for obtaining Proprietary Rights Transfer Order , as per the aforesaid law within 6 months and in case of receiving application, the same shall be decided by District Collector within one month period, failing which necessary steps can be taken by Government/Collector against them, however , not by Forests Department. No order as to the costs."
In the decree passed by the learned High Court except the prohibition imposed upon the Forests Department, all other commands need no interference.
7. So far as the observation of the High Court in the impugned judgment that the Forests Department shall not take any step, is concerned, it appears to be improper and against law. According to the enforced rules not only the Government and Collector but the Forests Department is also vested with powers relating to the khalsa land, which is under the possession of the Forests Department or is under the forests. Same like, the Forests Department is also vested with the powers of demarcation, as according to the provisions of section 4 of the Azad Jammu and Kashmir Grant of Khalsa Waste Land as Shamilat Deh Act, 1966, the procedure prescribed in the Forest Law Manual for demarcation of forests has to be followed and under the provisions of Rules for Demarcation of Forests and other relevant laws, the Forests Department is also the concerned party and vested with some powers relating to its interest under law. This proposition has already been dealt with by this Court in the consolidated judgment delivered in the cases titled Azad Government and others v. Khadija Bibi and others (Civil Appeal No.88 of 2015), along with the connected appeal titled Khawja Mumtaz Ahmed and others v. Azad Government and others (Civil Appeal No.373/2015), on 09.01.2017, in para 6 as follows:-- "...The conclusion drawn is baseless and without application of judicial mind and taking into consideration the law dealing with the subject matter i.e. section 4 of the Azad Jammu and Kashmir Grant of Khalsa Waste Land as Shamilat Deh Act, 1966, section 3 of the Azad Jammu and Kashmir Forest Regulations, 1930 and Rules 4 to 10 of the enforced rules for the Detraction of Forests read with section 172 of the West Pakistan Land Revenue Act, 1967.... "
Therefore, the imposition of prohibition from exercising the powers, upon the Forests Department in the impugned judgment by the High Court, appears to be inconsistent with law and uncalled for. In this state of affairs, while partially accepting this appeal the impugned judgment of the High Court stands modified in the terms that "the necessary steps can be taken by the Government and Collector as well as the Forests Department according to the enforced law and rules."
With the above modification this appeal stands disposed of with no order as to costs.