' Hussain Shah and others respondents/plaintiffs filed suit against the petitioners/defendants in the Court of learned Senior Civil Judge, Swat at Gulkada seeking declaration to the effect that they were owners of land mentioned in the heading of the plaint on the basis of sale-deeds dated 12-3- 1935 and 1-7-1936. Perpetual injunction restraining the defendants to interfere in the suit property was also sought as consequential relief. The said suit was resisted by the defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree, dated 19-11-1996. Feeling aggrieved with the said judgment and decree the respondents filed appeal in the Court of learned Additional District Judge/Izafi Zilla Qazi, Swat, which was allowed vide judgment and decree dated 17-7-1998.
Being not contented with the judgment and decree the petitioners have filed the revision petition in hand.
2. Mr. Muhammad Saeed Khan, the learned Additional Advocate-General argued that the property in dispute had been declared as protected forest by a Notification of the Provincial Government duly published in official Gazette and Government was shown as owner in the column of ownership in Fard Jamabandi for the year 1988-89 Exh.P.W.1/1, but the Courts below failed to appreciate the Revenue Record.
3. It was also argued that, it was the bounden duty of the respondents/plaintiffs to prove their case, but they failed to prove the sale-deeds dated 12-3-1935 and 1-7-1936 Exh.P.W.2/3 and 2/4. They even did not bother to state a single word as to whether the marginal witnesses of the said deeds were dead and even no attempt was made to prove the said deeds through secondary evidence.
4. It was also argued that the learned trial Court had while appreciating the evidence properly dismissed the suit. The judgment and decree passed by the learned trial Court was based on cogent reasoning, hence requires no interference, but the learned Appellate Court did not appreciate the evidence available on record, hence committed material irregularity.
5. It was also argued that though the learned trial Court had appointed Local Commissioner to inspect the property to determine three points. The report of the Local Commissioner was not objected to by either of the parties, but the learned trial Court did not accept the said report being collusive. Placing reliance by the Appellate Court over the said report of the Local Commissioner was therefore, illegal and not justified.
6. On the other hand Mr. Ziaur Rehman Khan, the learned counsel representing the respondents argued that in order to determine the real controversy the Court had appointed Commission who submitted his detailed report, which was not objected to by either of the parties, therefore, the same became part of the record and the case, was rightly decided on the basis of the report of the Local Commissioner under Order 26, rule 9, C.P.C.
7. It was also argued that there was no need to examine the marginal witnesses of the deed Exh.P.W.2/3 and 2/4 because those were registered documents and the same stood proved through the report of the Commission as well.
8. It was also argued that the judgment of the Appellate Court was well-reasoned and based on proper appreciation of evidence, hence requires no interference in exercise of revisional jurisdiction of this Court.
9. It was also argued that the adjoining property has already been recorded in the names of its owners though the same is situated in compartment No,6 of the protected forest.
10. I have heard the learned counsel for the parties and perused the record.
11. The question that requires consideration in this case is as to whether the property in dispute is protected forest or privately owned property of predecessor of respondents/plaintiffs. Answer to this question cannot be given at this stage because the provisions of Forest Act, 1927 were extended in PATA Area on 29-5-1974 vide N.-W.F.P. Regulation No,II of 1974. As per subsection (3) of section 29 of the Forest Act, 1927, which is reproduced hereunder for convenience:-- ' "No such notification shall be made unless the nature and extent of the rights of Government and of private persons in over the forest land or waste land comprised therein have been inquired into and recorded at a survey or settlement, or in such other manner as the Provincial Government thinks sufficient. Every such record shall be presumed to be correct until the contrary is proved."
' Notification is to be made after holding enquiry with regard to the nature and extent of rights of Government and of private persons. In the case in hand respondents/plaintiffs claimed that their predecessor was owner of the disputed property on the basis of registered sale-deed dated 1-7- 1936 Exh.P.W.2/4 and sale-deed dated 12-3-1935 Exh.P.W.2/3. They also claimed to be in possession of the same since its purchase. There is nothing on record to indicate as to whether any enquiry was conducted by the officials of the Government to find out the rights of the Government (Forest and Environmental Department) vis-a-vis private persons (plaintiffs) who as mentioned above, claimed to be the owners of the disputed property on the basis of registered sale-deeds. Similar, question came up for hearing before the august Supreme Court of Pakistan in Maj. Azam Khan Affandi v. D.C., Swat and 7 others 2000 SCMR 548 in which it was held:-- ' "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 Forests". 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 ever 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."
12. Keeping in view the fact that no enquiry whatsoever was conducted as required under subsection (3) of section 29 of the Forest Act, 1927 and the dictum laid down by the august Supreme Court of Pakistan quoted above, I am of the view that still there is no hurdle in the way of Provincial Government to hold enquiry with regard to the rights of Government and of the respondents/plaintiffs over the property in dispute. The Provincial Government through Secretary Forest and Environmental Department is, therefore, directed to hold enquiry through impartial official preferably through District Revenue Officer/Collector Swat. The Enquiry Officer shall submit his report within a period of two months positively.
13. The argument of the learned counsel for the respondents that the report of the Local Commission was binding under Order 26, rule 9, C.P.C. Has no force. Under Order 26, rule 9, C.P.C. a Local Commissioner is appointed by the Court for the purpose of making a local investigation and then giving his findings on the points referred to the Local Commissioner. The question as to whether the report of the Local Commissioner is binding on the Court, answer to this question is in negative. It is by now settled law that the report of the Local Commissioner cannot be termed as "findings" but only proceedings of an enquiry for information and assistance of the Court. The Court alone is empowered to give its findings on each and every issue. A similar question came up for hearing in Mushtaq-ur-Rehman and 4 others v. Muhammad Akbar and 5 others 1981 CLC 364 in which it was held:-- ' "It is a matter of common knowledge that when a Local Commissioner is appointed under rule 9 of Order XXVI of the Code of Civil Procedure at the request of the parties or otherwise, his appointment is made for the purpose of making a local investigation and then giving his finding on the point referred to him. His report is not binding on the parties nor is the Court obliged to decide the dispute in terms of his report."
' Likewise in Muhammad Bakhsh v. Nizam Din PLD 1978 Lah. 31 it was held:-- ' "Now this is established law that section 75 as well as Order XXVI, do not allow delegation of powers by the Court to the Local Commissioner to decide material issues. His report cannot be considered to be a finding. It is only the proceedings of an inquiry for the information of the Court after which the Court is bound to give its own finding on each and every issue. It is only an evidence under Order XXVI, rule 12 and not a decision. Tincowri Debi v. Suttya Doyal Banerji and another 6 Cal. LJ 105, Sawan Mal v. Raunaq Mal AIR 1922 Lah. 47, Firm of Seth Vishindas Nihalchand v. Nazarali Samji AIR 1924 Sind 9, Assarmal and another v. Hundomal and another AIR 1925 Sind 265, Bharat Chandra Chakrbarty v. Kiran Chandra Bai AIR 1925 Cal. 1069, Tulsi Ram v. Dina Nath and others AIR 1926 Lah. 145, Bholanath Roy v. Bata Krishna Roy and others AIR 1927 Pat. 135, Nalini Kumar Chakrbarty v. Gadadhar Chaudhry and others AIR 1929 Cal. 418, Ugra Narain Chaudhry and others v. Haribans Chaudhry and others AIR 1930 Pat. 557, Dargahan Bibi v. Jyoti Prasad Singh Dev. AIR 1934 Pat. 35, Ram Krishna Dalmia and others v. Chand AIR 1960 Punj.
430. In Ram Krishna Muraji v. Rattan Chand AIR 1931 PC 613 the following points were referred to for report by the High Court to a Local Commissioner-
(1) Whether the old firm of Hardeo Das Kalyan Mal carried on business relating to sugar, silver, gold or cotton on its own behalf or whether it was confined to commission agencies?
(2) Whether the new firm carried on any commission agency business or not?
(3) Whether the latter business was of a gambling nature?
This procedure was disapproved by the Privy Council since the matter could be referred for report to the trial Court. The Dacca High Court in Province of East Pakistan v. Upendra Narayana Lala 1979 DLC 817 held that where the matter could be decided by direct evidence, the power to record such evidence could not be delegated to the Local Commissioner.
' In Mokam Haldar v. Naimaddi Shaikh AIR 1935 Cal. 28 it was held:-- ' "We are of opinion that in this case the learned subordinate Judge did not exceed the proper limits in criticizing the work of the Commissioner. He accepted the map prepared by the Commissioner as correct. He accepted facts stated by the Commissioner. He only disagreed with the conclusion of the Commissioner. This, in our opinion he was entitled to do."
' Similar view was taken in the following cases also:--
(1) Sone Kaur and others v. Baidyanath AIR 1926 Pat. 462(2) and (2) Chaudhry Shah Muhammad and 6 others v. Muhammad Ishaq and 5 others 2001 MLD 1518. {{PAGE CUT}}
14. The perusal of the abovementioned judgments shows that the report of the Local Commissioner cannot be termed as "finding" and is not binding on the Court. It is at the most taken as evidence, but the same must be tendered as evidence before it become evidence in a suit. No doubt the report of the Local Commissioner, statements recorded by him and other material collected by him would form part of the record of the suit but the same cannot'be called as "evidence in the suit" unless the same is tendered "in evidence" as per prescribed law. Rule 8 of the sam Order enumerates the condition when the evidence taken under Commission is not rendered as evidence in the suit. The first and tl foremost being that the report of the Commissioner cannot be read evidence in the suit without the consent of the party against whom 1 same is offered, unless the person who gave evidence is beyond jurisdiction of the Court or dead or unable from sickness or infirmity attend to be personally examined or exempted from personal appearz in the Court or is a person in the service of State who cannot, in opinion of the Court, attend without detriment to the public servic the Court in its discretion dispenses with the proof of any o' circumstances mentioned above and authorizes the evidence of person being read as evidence in the suit, notwithstanding proof th cause for taking such evidence by Commission has ceased at the t' reading the same.
Sub-rule (2) of rule 10 of the same Orde' stipulates that the report of the. Commissioner and the evidence ti him (but not the evidence without the report) shall be evidence in t and shall form part of record; but the Court or, with the perrni4 Court any of the party to the suit' may examine the Comrr~r personally in open Court touching any of the matters referred for mentioned in his report, or as to his report, or as to manner in he has made the investigation. The above provisions of law ,he proposition clear that the report of the Commission does form ithe record of the suit but the same does not automatically becom(hce in the suit unless the same is tendered in evidence in accorevith {{PAGE CUT}} law. A similar proposition came up for hearing in Mohan Lal v. Lachhman Das Mohan Lal & Sons Ltd.
AIR (39) 1952 All. 563 in which it was held:-- ' "Evidence taken on Commission cannot under rule 7 automatically be treated as evidence in the suit. Evidence taken on Commission must be tendered as evidence before it becomes evidence in the suit."
15. Since the Courts below have failed to appreciate the above discussed legal position, therefore, I allow the revision petition in hand, set aside their judgments and decrees and remand the case back to the learned trial Court with the direction to allow the parties to adduce further evidence in support of their respective claims and on receipt of the report from the Enquiry Officer, decide the suit strictly in accordance with law, preferably within a period of six months. Parties are directed to appear before the learned trial Court on 10-5-2004. The office is directed to remit the record back to the said Court before the date fixed. There shall be no order as to costs.
Revision .