' ABDUR REHMAN KHAN, J.---These two direct connected appeals impugn the correctness of the common judgment of a learned Division Bench of the High Court announced on 12-6-1996; whereby, while accepting the First Regular Appeal filed by the respondents, the judgment and decree of the learned trial Court were reversed and consequently, the suit of the plaintiff/ appellant, was dismissed.
2. Plaintiff, Major Azam Khan, now appellant, instituted suit for possession by demolition of the superstructure (Abadi) over it in respect of the suit land described by boundaries in the heading of the plaint and specified in the site plan annexed to the plaint. It was averred in the plaint that the disputed land along with other adjacent land was purchased by him through sale-deeds No,341, dated 27-8-1970, No,346, dated 27-8-1970 and No,533, dated 18-2-1971. The plaintiff referred to various litigation between the persons from whom he had purchased the land and other claimants of the land which was decreed in favour of his vendors. It was also stated that a hotel known by the name of Dil-Aram Hotel was constructed on this land which was insured with Eastern Federal Union Insurance Company and the plaintiff had received an amount of Rs,16,000 as compensation from the Company as the hotel had been burnt. It was also alleged that an agreement was executed between the plaintiff and defendants Nos. 2 to 5 through the Deputy Commissioner, defendant No,1 on 18-4-1982, whereby defendants Nos.2 to 5 wanted to construct Kalaam Hydle Scheme and the price of this land was fixed at Rs,12,000 per Kanal and the plaintiff was paid Rs,32,812.50 as advance.
It is alleged that thereafter defendant No,1 instigated defendants Nos. 6 to 8 (officers of Forest Department) to lay claim to the land in question in spite of the fact that neither this land had been acquired by the Forest Department nor any compensation was paid to the plaintiff. It was in the above background alleged that the defendants violated the agreement and, therefore, the plaintiff was also not bound by it and as such was entitled to receive the market price of the disputed land from the defendants or to get back its possession through demolition of the Abadi. Defendants Nos.1 to 5 filed a joint written statement wherein it was averred that they had become owners of the suit land having acquired it in accordance with law. The execution of the agreement, dated 18-4- 1982, was admitted. Defendants Nos.6 and 7 (officers of the Forest Department) submitted separate written statement wherein ownership of the plaintiff was denied and instead ownership of the Forest Department was asserted over the suit land and trees therein. The agreement deed between the plaintiff and defendants Nos.1 to 5 was denied and it was stated that even if such agreement had been executed that was ineffective over the rights of the Forest Department.
3. The learned trial Court on the basis of oral and documentary evidence brought on record, came to the conclusion that the plaintiff had purchased the land by the sale-deeds; that the agreement deed executed between the plaintiff and defendants Nos.1 to 5 was legal and binding; that the Provincial Government could not become owner of the disputed land merely because it had notified it as the "Protected Forest" as section 29(3) of the Forest Act, 1927 had not been complied with before issuance of this notification. The trial Court, therefore, not only decreed the suit of the plaintiff in respect of the land mentioned in the plaint but also regarding the adjacent land allegedly covered by the sale-deed relied on by the plaintiff. The learned Judge in the High Court, however, did not agree with the above conclusion of the trial Court and instead had taken contrary view than that of the trial Court and, therefore, reversed the judgment and decree passed by the trial Court.
4. The learned counsel appearing for the appellant argued that the boundaries given in the sale- deeds have not been disputed in the written statement and as such the High Court erred in discarding the sale-deed in favour of the appellant on this count. It was also argued that the High Court had no legal justification to set aside the judgment of the trial Court. It is to be noted at this stage that we would confine our discussion and finding regarding the land as has been claimed in the plaint and to that extent would discuss the merits of the respective claims of both the sides.
Plaintiff asserts his ownership on the strength of the sale-deeds detailed in the plaint and exhibited on record and also relies on the minutes/ proceedings of the meeting held on 17-4-1982 and recorded on 18-4-1982, which is Exh. P.W.2/12. This Exh. P.W.2/12 is described by the plaintiff as agreement as according to him therein the ownership of the plaintiff over the suit land has been admitted. Defendants Nos.1 to 5 (D.C. And Irrigation Department) in their written statement admit the correctness of the agreement Exh.P.W.2/12 and their stand is that the Government through Irrigation Department has become owner of the disputed land through valid acquisition.
Defendants Nos.6 and 7 (Forest Department) denied ownership of the plaintiff as according to them this land had been notified as forest and is included in compartment No,1 of the forest and, therefore, belongs to the Forest Department. It is, thus, apparent that the identity/ boundaries of the disputed land in which Kalam Hydle Scheme has been constructed are not disputed by the defendants. It is also obvious from the pleadings and evidence on record that none of the defendants has challenged the correctness of the sale-deed in favour of the plaintiff. Therefore, to determine the merits of the claim of the parties it is not necessary for us to find out the details/ boundaries of the land covered by the sale-deeds relied on by the plaintiff, but we have to ascertain whether the plaintiff has been able to substantiate his entitlement to the suit land.
Defendants Nos.1 to 5 did not dispute the ownership of the plaintiff to the disputed land rather they claim ownership over it on account of its acquisition from the plaintiff. Thus, we are left to scrutinize and decide about the claim of the plaintiff and that of the Forest Department who are defendants Nos.6 to 8. To prove their ownership on the disputed land the plaintiff examined P.W.1 Muhammad Yousaf, Reader to Thesildar Bahrain who stated that the sale-deeds relied on by the plaintiff have been entered in Register of 'Tamassak' maintained in the office. P.W.2 is special attorney of the plaintiff who stated that the disputed property along with other land was purchased from Muhammad Yousaf, Badshah Khan and Miskin Khan on the basis of sale-deeds dated 27-8-1970, 27-8-1970 and 13-2-1971 (Exhs. PW-2/2 to PW-2/4 and, thereafter, the plaintiff is continuing in possession of this land. He then referred to the litigation between his vendors and the other claimants of the disputed land which was decided in favour of the former. The judgment of these cases were exhibited as PW-2/5 to PW-2/7. He then deposed about the construction' of the Dil Aaram Hotel over the disputed land which was later on burnt and he was paid the benefits arising from the insurance through Exh.PW-2/8. He then stated that defendant No,1 was instrumental and inciting the Forest Department to lay claim to the suit land. He brought on record the letter dated 19-10-1982, as Exh.PW-2/13 whereby the Deputy Commissioner had asked the Divisional Forest Officer to clarify their position as to whether the Department claims ownership over the disputed land and also placed on record the reply to the said letter as Exh.PW-2/14. It was in this context stated that as the defendants have violated the agreement (PW-2/12), therefore, the plaintiff also no longer considered himself bound by it. P.W.3 Muhammad Yousaf is one of the original owners who had sold a portion of the disputed land through sale-deed bearing No,341 dated 27-8-1970 to the plaintiff. He also stated that his brothers Bacha Khan and Muhammad Miskin had also sold their share to the plaintiff by sale-deeds Nos.346 and 533. He added that after that the plaintiff constructed hotel over it which was later on damaged by fire. He denied that the suit land was located in the Forest Compartment No,
1. From the side of the contesting defendants i,e, the Forest Department, the Range Officer appeared as D.W.1 who stated that the land belonged to the Forest Department and is part of Compartment No,
1. He denied ownership of the plaintiff and termed his claim as frivolous. He, however, admitted "it is correct that the Irrigation Department has installed a Hydle station on the disputed land". Defendants Nos.1 to 5 examined Humayun Zaildar as D.W.2 who stated that his Department has deposited the compensation amount in respect of the disputed land to be paid either to the plaintiff or the Forest Department, whoever is able to establish his ownership over it. He admitted that "we have constructed a power house over the suit land".
Besides the above evidence in the case the Local Commissioner was appointed for verification of certain points in respect of disputed land. He was also examined as C.W.1 who proved his report, CW-1/1. According to his report the Hydle Power Station is situated in the land which was previously owned by Said Habib and which was sold to the plaintiff by the sale-deeds referred to above.
5. The analysis of the above evidence indicates that the preponderance of evidence regarding ownership is in favour of the plaintiff. The statement of P.W.1 proves that the sale-deeds in favour of the plaintiff have been entered in the relevant register maintained for this purpose. P.W.3, one of the alleged owners, admits sale in favour of the plaintiff. D.W.2 a witness of defendants Nos.1 to 5, admits that there was meeting between Deputy Commissioner, representative of the Forest Department and the plaintiff in which they were directed to deposit the compensation amount which was to be paid to the parties who proves ownership over the acquired land. The plaintiff describes the proceedings of this meeting as an agreement arrived at between him and the defendants whereby he was recognized as owner of the disputed land and as such entitled to compensation for acquisition. This document is admittedly Exh. PW-2/12 which pertains to "Minutes of the Meeting Regarding Acquisition of Land KSR Acquired for the Kalam Hydle Scheme". In this meeting the Deputy Commissioner, the Executive Engineer of Irrigation Department Swat, attorney of the plaintiff and Range Officer Bahrain were present. Reading this document as a whole it amounts to acquisition of the disputed land for Kalam Hydle Scheme through negotiation. This document is dated 18-4-1982 and the relevant portion of it is reproduced:-- "The Deputy Commissioner, Swat explained to the meeting that the land for Government use can be acquired either through negotiation between the acquiring department and the owner of the land or by compulsory acquisition under Land Acquisition Act. He stated that the purpose of this meeting is to settle this issue through negotiation instead of resorting to compuslory acquisition which will be lengthy exercise. The following decisions were unanimously taken:--
(1) Cost of land acquired for Kalam Hydle Scheme will be calculated at the rate of Rs,12,000 (twelve thousand) per Kanal.
(2) The area acquired will be measured by Revenue/Irrigation Staff in the presence of its owners.
(3) Cost of crops and other damages etc. Will be determined by the Revenue Staff in consultation with the acquiring department and owner of land.
(4) The owner will have the right to use the approach road towards power house for going to the land behind/adjacent the power house.
(5) The cost of trees cut will be determined by the Forest Department. The rate is assessed by Forest Department is Rs,35 cft. For Deodar Species and Rs,30 cft. For coil and species per logs. The owner of the land has agreed to this price.
' It was also decided that the actual measurement of the land acquired and the compensation of damages will be undertaken by the acquiring department in collaboration with revenue staff Forest Officials and the owners of the land on 19-4-1982 at 12 hours. Tehsildar Behrain has been directed to be present on the spot and provides all possible assistance."
' The gist of the document is that all the defendants admit ownership of the plaintiff over the disputed land and it was acquired through negotiation from him for Kalam Hydle Scheme at the rate of Rs,12,000 per Kanal and the price of the trees standing on it. Another relevant document in this respect is Exh. PW-2/13 which is a letter dated 19-10-1982, from the Deputy Commissioner, Swat to Divisional Forest Officer asking him: "I am basically interested in your clear-cut report that whether Forest Department claims the ownership of this land. This information can be given on the basis of your office record."
' The reply from the Forest Department is contained in Exh.PW-2/14 and the relevant para. Is No,3 which reads:-- "3. As already mentioned in its Office Letter No,1367/G, dated 10-11-1982 there is nothing on the record that the Forest Department has ever been party at any stage except when the acquisition of land was finalized and removal of trees was required to clear the site for water channel of the Hydle Power Station. Again even after marking removal of trees, the Forest Department is to send the cheque of the amount realized from the purchaser of the said timber to the District Administration as the ownership record is maintained only by the District Administration and the Forest Department as is the case in other royalty cases has nothing to do with the disbursement of royalty amount or ascertaining the ownership."
' On the other hand the Forest Department merely relied on a general notification issued on 12-12- 1975 under section 29 of the Forest Act, 1927; whereby, all the Forests in Kalam were declared as "Protected Forest". However, mere issuance of notification would not divest the real owners of the Forest Land of their proprietary rights. This is admitted position that before the notification the Government was neither the owner of the property in question nor it had over claimed proprietary rights in this land. It is also' admitted position that no inquiry as envisaged under sub-clause (3) of section 29 of the Forest Act, was conducted in the matter to ascertain and determine the rights of the private persons who could be the plaintiffs in this case. The decision of the trial Court that by mere issuance of Notification the Forest Department does not become owner was correct while the contrary view taken by the High Court is not well-founded.
6. In view of the factual position narrated above we set aside the impugned judgment of the High Court to the extent that it declined to hold the plaintiff as owner of the disputed land as mentioned in the plaint and on that count not entitled to the compensation of the acquired land and trees cut therefrom and restore that of the trial Court to the extent of declaring the plaintiff as owner in possession of the suit land and on that score entitled to receive compensation amount which has been deposited with the Deputy Commissioner in respect of the construction of Hydle Power Station and similarly to get the price of the trees which stood on the disputed land which were sold/ auctioned to clear the land for construction of the Hydle Power Station and which amount has also been deposited with the Deputy Commissioner . We, however, uphold the impugned judgment of the High Court in respect of the land not mentioned in the plaint of the present case.
We observe that the plaintiff of this case or anybody claiming any interest in the land not covered by the plaint of the instant case would be at liberty to approach the competent Court for redress of their grievance and in that case nothing said/ observed in any of the judgments including this Court judgment would affect further course of litigation which would be determined on the basis of the evidence recorded in those cases without being influenced in any way by any of the judgments in the present litigation.
' The learned counsel for the appellant vehemently pressed that the plaintiff can legally be granted declaration in respect of the property not mentioned in the plaint as has been done by the trial Court and he referred to several precedent cases in support of his view. But we are not inclined to accede to his submission because the record indicates that some private persons who have not been made party in this case also claim ownership over the land allegedly purchased by the plaintiff through the sale-deeds as relied on by him and any decision about the land, subject- matter of the said .Sale-deeds, would affect their interest without their being parties in the case.
Parties are directed to bear their own costs.