M UHAM M AD IJAZ KHAN, J. Through the instant revision petition, petitioners have challenged the order and judgment of the learned Additional District Judge-III/Izafi Zilla Qazi, Swat dated 25.04.2022, whereby the appeal filed by the respondents/plaintiffs was allowed and the case was remanded back to the learned trial Court with directions to continue with the proceedings as per the law.
2. Precisely the facts of the case are that Gul Ambar and 10 others brought a suit against the present petitioners along with other defendants, for a declaration-cum-perpetual/mandatory injunction and for the correction of certain entries made in the revenue record on the ground that they are the ancestral owners-in-possession of the suit property fully mentioned in the heading of the plaint as their predecessor namely Salar has purchased the said property through registered deeds and that defendants, now petitioners, have no concerned with the same qua its ownership, possession or cultivation.
3. The present petitioners, then defendants, were summoned and they instead of filing their written statement, straightaway submitted 'an application for rejection of the plaint being non- maintainable and barred by law on the ground that the suit property is a protected fotest since the era of ex-State of Swat and thus, the same has rightly been entered in the revenue record in the name of the Provincial Government under MLR, which cannot be called into question in a civil Court through filing of the instant suit as jurisdiction of the civil Court is barred to entertain such controversies. This application was contested by the respondents/plaintiffs and after hearing the arguments, the same was allowed by the learned trial Court and the plaint filed by the respondents/ plaintiff was returned to them for its presentation before the appropriate forum vide order and judgment dated 16.01.2019. This order and judgment was challenged by the respondents/ plaintiffs through an appeal before the learned District Judge/Zilla Qazi Swat, which was allowed, the order and judgment of the learned trial Court dated 16.01.2019 was set aside and the case was remanded back to the trial Court with the directions to continue with the proceedings in accordance with law, vide the impugned order and judgment dated 25.04.2022. Petitioners, then defendants, have now challenged the aforesaid order and judgment before this Court through the instant revision petition.
4. Arguments of the learned Asst:A.G. representing the petitioners were heard in detail and the record perused with his able assistance.
5. The record reveals that the respondents/plaintiffs have filed a declaratory suit to the effect that they are owners-in-possession of the suit property on the basis of certain registered deeds, which are fully mentioned in the heading of the plaint. It has also been pleaded by the respondents/plaintiffs in their plaint that the suit property is not a part of the protected forest rather it has been and it is their private property. It has further been. pleaded that the suit property has never been remained part of the protected forest and as such any entries of such kind in the revenue record are factually incorrect, illegal, not sustainable, ineffective upon the rights of the respondents/ plaintiffs and are thus liable to correction.
6. The aforesaid nature of the suit would show that the respondents/plaintiffs have challenged the entries made in the revenue record under section 53 of The Land Revenue Act, 1967, which is reproduced below :- "53. SOU for declaratory decrees by persons aggrieved by an entry in a record.--If any person considers himself aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act I of 1877)."
The aforesaid provision clearly mandates that whoever is aggrieved of any entries of the revenue record has to file a declaratory suit and as such, the suit filed by the respondents/plaintiffs was fully competent within the meaning of Section 53 of the Act of 1967 read with section 42 of The Specific Relief Act, 1877.
7. As far as the bar of jurisdiction contained in section 92 of the Khyber Pakhtunkhwa Forest Ordinance, 2002 is concerned, the said question came Up before this Court in W.P. No. 551-M/2017 along with other writ petitions, where the same has elaborately been discussed, relevant part of the said judgment is reproduced below:-
25. Determination of question [b]: (Whether the bar of jurisdiction contained in Section 92 of the Forest Ordinance would be an absolute bar, debarring any civil suit, wherein certain rights are claimed in immovable property and in defence, it is alleged that the property had ever been declared as protected or reserved forest?); Section 92 of the Forest Ordinance has provided for a bar on exercise of jurisdiction by a civil Court.
Sections 92 and 93 of the Forest Ordinance being relevant are reproduced hereunder for ready reference;
92. Bar of jurisdiction.--Except as provided in section 93, no Civil Court shall exercise jurisdiction over any of the matters relating to the implementation of this Ordinance or rules made thereunder.
93. Jurisdiction of Forest Magistrates.--
(1) All offence cases punishable under this Ordinance and rules made there-under shall be tribal exclusively by the Forest Magistrate or in his absence by a Magistrate of First class duly empowered by the District and Sessions Judge concerned.
(2) A Forest Magistrate shall not take cognizance of an offence triable under subsection, (1), except on a complaint in writing by the concerned Forest Officer, or by the concerned community-based organization, village-based organization or the Joint Forest Management Committee.
Section 92 of the Forest Ordinance provides that a civil Court shall not exercise jurisdiction for any of the matters relating to implementation of the Forest Ordinance or rules made there-under, except in situation provided in Section 93 of the Forest Ordinance. Section 93 of the Forest Ordinance had provided for jurisdiction of the Forest Magistrate to try all offences punishable under the Forest Ordinance or rules made there-under. It is quite clear from combine reading of section 92 along with section 93 of the Forest Ordinance that jurisdiction of civil Court is barred in relation to any matters relating to implementation of the Forest Ordinance or rules made there-under and the issues arising out of such implementation are required to be exclusively dealt with by a Forest Magistrate under section 93 of the Forest Ordinance. In other words, when certain steps are taken by the officers of Forest Department for implementation of the Ordinance, then such steps shall not be called in question in any civil Court.
8. It may be noted that whenever there is a question of enforcement of The Ordinance of 2002 or the rules framed there-under, then the Forest Settlement Board would have exclusive jurisdiction in the matter, however, in the present 'suit, the respondents/plaintiffs have neither sought protection of The Ordinance of 2002 nor the enforcement of the rules framed there-under, therefore the same squarely falls beyond the palm of the Board as constituted under section 5 of The Ordinance of 2002.
9. It is relevant to mention here that the suit is at the very initial stage as even the petitioners/defendants have not yet filed their written statement, therefore instead of inviting unnecessarily litigation, it is in the larger interest of both the parties that the controversy between them is decided in a judicious manner, after recording of pro and contra evidence.
10. In view of the above facts and circumstances of the case, the reasons recorded by the learned appellate Court vide the impugned order and judgment dated 25.04.2022 are legally correct and are in accordance with the relevant law on the subject, therefore the same are maintained and upheld and it is held that the learned civil Court has the jurisdiction to entertain the plaint of the respondents/plaintiffs and to proceed with the same in accordance with law. Consequently, the instant civil revision petition being bereft of any merit is hereby dismissed in limine, however, the learned Asst:A.G. representing the petitioners at the end states that apart from the question of jurisdiction of the civil Court, they have also certain other grounds qua the maintainability of the suit, therefore the petitioners may be allowed to agitate the same at the appropriate stage before the learned trial Court. Accordingly, any other grounds, if available, could be agitated by the present petitioners before the learned trial Court after assumption, of jurisdiction by the civil Court but in accordance with law.