JAWWAD S. KHAWAJA, J. This petition arises out of an application filed by the petitioners/plaintiffs under Order 39, Rules 1 and 2, C.P.C. Through this application, the petitioners had sought an order to restrain the respondents from the use of a khal, which is subject-matter of a declaratory suit filed by the petitioners. The said application was allowed by the learned Trial Court vide order dated 29.7.2004. However, on appeal filed by the private respondents , the said order was set aside and the application was dismissed.
2. According to the petitioners, the previously functioning khal was diverted and as a result, its route was shifted onto and in Khasra Nos. 242 and 243 belonging to the petitioners. According- to the petitioners, this could only have been done after adopting the procedure setout in Section 20 of the Canal & Drainage Act This fact, however, has been disputed by the private respondents as well as the canal authorities. The learned Law Officer has argued that the provisions of Section 20 aforesaid will only apply if, indeed, the khal is excavated' over and belonging to the petitioners. The record produced by the departmental authorities indicates, prima facie. That the disputed khal is not located on and belonging to the petitioners. In the circumstances, I find the impugned appellate order to be unexceptionable. This petition is, therefore, dismissed.
3. Needless to say, the petitioners shall be entitled to adduce0evidence .During trial to establish their Contention that their land has been used and excavated for the. Purpose of the disputed khal The learned Trial Court shall proceed on the basis of evidence produced before it regardless of any observation made in the order of the learned Appellate Court in the present order.