' JAWWAD S. KHAWAJA, J.---The petitioners impugn the concurrent decrees of the learned trial Court dated 11-1-2005 and of the learned appellate Court dated 22-11-2005 whereby a declaratory suit filed by the petitioners has been dismissed.
2. The dispute between the parties relates to irrigation water. The plaintiffs are aggrieved of an order dated 17-12-1991 passed by the Divisional Canal Officer and the order dated 15-3-2001 also passed by the same officer.
3. The facts of this case are simple. The petitioners own land which is irrigated through Khushab minor (Outlet No,40200/L-1). Respondent No,5 Muhammad Ijaz Khan owns land measuring 231 acres which was irrigated through Outlet No,34500/L of the aforesaid minor. The first impugned order dated 17-12-1991 purported to shift the land of the respondent Muhammad Ijaz Khan and others from Outlet No,34500/L to 40200/L-1. The second impugned order dated 15-3-2001 purports to be an amendment of the warabandi.
4. According to the petitioners, both the impugned orders were passed behind the back of the petitioners although section 20 of the Canal and Drainage Act expressly stipulates that notice has to be issued to all irrigators effected by any warabandi or change therein. Learned counsel for the petitioners has also referred to the evidence on record including the testimony of the functionaries of the Canal Department which establishes that the petitioners were not served either before the passing of the order dated 17-12-1991 or when the second order dated 15-3-2001 was passed.
5. Notwithstanding the above position, the suit of the petitionershas been dismissed on the Short ground that the original order dated 17-12-1991 was passed in 1991 and, therefore, the suit of the petitioners, which was filed on 17-8-2001, was time-barred. Learned counsel states that the order of 17-12-1991 was not in the knowledge of the petitioners and in any event remained unimplemented for a period of almost ten years. The petitioners only became aware of the said order when the order dated 15-3-2001 was passed amending the warabandi and the canal authorities attempted to implement the two orders.
6. On the above basis, it was argued on behalf of the petitioners that the impugned decrees were not legally sustainable. The learned Law Officer and Muhammad Ijaz Khan respondent in person could not controvert the fact that there was nothing on the record to establish that the petitioners had been duly served in accordance with section 20 of the Canal and Drainage Act before the two orders dated 17-12-1991 and 15-3-2001 were respectively passed. Here I may add that Muhammad Ramzan, Record Keeper of the Khushab Canal Division, appeared as P.W.4. He specifically deposed that according to the record brought by him, the petitioners were not heard when the first order passed and nor was there any document on file through which it could be established that they had been served in the case.
7. The learned Law Officer and respondent No,5 adverted to the testimony of P.W.2, namely, Yousuf Hussain, Reader to the Sub-Divisional Officer. In his testimony, he referred to some other litigation and interim orders passed therein. This testimony, however, does not prove that the petitioners had been served before the passing of the order dated 17-12-1991. If at all there was proof of service on the petitioners, it was for the respondents to adduce evidence to establish the same. Furthermore, if it was the case of the respondents that the petitioners were aware of the order dated 17-12-1991 on account of some previous litigation, the copies of the record of such litigation should have been produced in evidence. This has not been done and nor has proof of service of the petitioners been proved on record.
8. In the foregoing circumstances, the learned Courts below were not justified in non-suiting the petitioners on the ground of limitation or on the ground that they had been duly served before the impugned orders were passed. The impugned decrees of the learned Courts below are, therefore, set aside. This judgment, however, shall not preclude the Canal Authorities from taking decisions in future in accordance with the provisions of the Canal and Drainage Act.