' MIAN SAQIB NISAR, J.--- The noted Writ Petition 1951 of 2006 and the connected Civil Revision No,378 of 2004 are being decided through this single judgment, as the dispute is between the same parties regarding the watercourse and Warabandi.
2. Brief facts as propounded in this constitutional petition are, that the petitioner is the owner of certain land situated in Square No,156 (described in the petition), which was being irrigated through Nakka No,120/15 in the land of the private respondents (the respondents), with the internal Khal/watercourse passing through their land from Killa Nos.14, 17 and 24 of Square No,120 and Killa Nos.4 and 7 of Square No,156. According to the petitioner, who is closely related to the respondents, that such Khal was demolished by the respondents, resultantly, the petitioner moved an application dated 21-4-1990 (Annexure "B") followed by another dated 18-9-1990 (Annexure "C"), bbth under section 68-A of the Canal and Drainage Act, 1873, seeking the restoration of the dismantled Khal with third application dated 2-5-1991 (Annexure "D"). It is further mentioned in the petition that respondents Nos.6 to 8 have filed some application for the amendment of the Warabandi; the petitioner too moved such application on 1-11-1992, which were decided by the Canal Authorities on 20-12-1992. The petitioner being dissatisfied with the above, filed an appeal, which failed on 16-3-1993; he challenged the said orders through a suit which was dismissed on 5- 12-1995, but his appeal was accepted by the learned Additional District Judge on 2-6-1998 and against this order, the connected Civil Revision No,378 of 2004 is pending adjudication which is being hereby decided.
3. The petitioner claims that on his third application under section 68-A, the supply of the water to his land was ordered to be restored vide order, dated 2-5-1991 and respondent No,8 (now represented by legal heirs) filed a civil suit in which, the order dated 2-5-1991 was set aside vide judgment, dated 31-7-1991. Thereafter, two Writ Petitions Nos.2249 of 1993 and 1374 of 1994 were filed before this Court by the petitioner and in pursuance of an.Order passed in Writ Petition No,2249 of 1993 dated 29-6-1993, the petitioner again filed an application under section 68-A dated 3-7-1993 (Annexure "0"), which was decided by the Divisional Canal Officer vide order, dated 1-8-1993. The second Writ Petition No,1374 of 1994 filed by the petitioner was decided by this Court on 29-6-1995.
During this period, another application was filed by the petitioner under section 68-A (Annexure "Q") before the Divisional Canal Officer/respondent No,1, who passed an order dated 25-3-1999.
4. Aggrieved by the above order, one Jamshed Ali filed a civil suit and so did the petitioner; both were disposed of vide judgment dated 3-12-2005. Apart from the application dated 141-1992, referred to above, under section 68-A, the petitioner again filed an application on 29-7-1993 under section 68 before respondent No,2 who according to the petitioner kept it pending due to the civil suit vide order, dated 1-8-1993. Third application under section 68 (ibid) was filed on 2-9-1993 before respondent No,2 and was kept pending on 10-9-2003. It is averred by the petitioner that in these applications, he inter alia prayed for the formal sanction of the internal Khal passing through respondents' Killa Nos.15, 14, 17 and 24 of Square No,120 and Killa Nos.4 and 7 of Square No,156. In paragraph No,8 of the petition, it is specifically mentioned that the Canal Authorities have failed to restore the water supply to the petitioner during the pendency of his application under section 68 and in this behalf, the impugned order in this petition is dated 25-3-1999.
5. Number of grounds have been taken in this petition to challenge the aforesaid order and it has been additionally prayed that the respondents be directed to forthwith restore the interrupted supply to the petitioner's land from Nakka No,120/15. .A direction is also being sought for the Canal Authorities to take punitive actions against the respondents for their acts of omission and commission, as permissible under the law.
6. The petition has been contested by the respondents, who have raised the legal objections, that the petition is barred by laches; there are complicated facts involved in the matter, therefore, the petition be dismissed. On merits, it has been brought to the notice of the Court that the case now being set out by the petitioner is contrary to his original stance in his first application under section 68-A dated 21-4-1990; the petitioner being the close relative of the respondents was cultivating their land and in such capacity he has got the Nakka No,120/15 sanctioned and utilized Killa Nos.14, 17 and 24 of Square No,120 and Killa Nos.4 and 7 of Square No,156 for the purposes of his land in Square No,156. It is the respondents' case that there has never been a sanctioned Khal in the aforementioned Killas and, therefore, the question of its demolition or restoration does not arise.
Learned counsel for the respondents along with the written statement to this petition has appended the statement of the petitioner, which he 'made in the civil suit out of which, Civil Revision No,378 of 2004 has arisen and pointed out the numerous admissions made on the part of the petitioner about the non-sanctioning of the internal Khal and that his land, which he had purchased/acquired in Square No,156 was being irrigated by his seller from Nakka No,119/18, thus, it is submitted that having a different watercourse available, from which, the petitioner's land was being irrigated by his predecessors, he cannot ask, for the restoration of the Khal from the respondents' land.
7. I have heard the learned counsel for the parties. From the statement of the petitioner while appearing as P.W.1 in the civil suit (relating to Civil Revision No,378 of 2004), he admitted that the owners of the land from whom, he has purchased the land in Square No,156, used to irrigate the same through Nakka No,119/18. He also admitted that for the Warabandi of the year 1986 he got his land transferred to Nakka No,120/15 and that at the relevant time, he was acting as an attorney for the respondent Abdul Aziz. It is further admitted by the petitioner that before 2-11-1992 he never applied for the change of Nakka No,119/18 for the said land; he stated that it was not so done because his land was being irrigated from Nakka No,120/15. From the above, it is manifest that the petitioner is not the original owner of the land falling in Square No,156, but has purchased this subsequently, from Rafi etc. And Jamshed, and such persons used to irrigate the land from Square No,157 which is- a sanctioned watercourse. The question to be examined is, if there existed a sanctioned watercourse from Nakka No,120/15 passing through Killa Nos.14, 17 and 24 of Square No,120 and Killa Nos.4 and 7 of Square No,156 and if not, whether for the purposes of section 68-A it can be treated to be the internal watercourse/ Khal, which has been demolished by the respondents, and for the restoration whereof, the petitioner can avail the remedy under section 68- A.
8. For resolving the above proposition, the reference is made to the first application dated 21-4- 1990, which was submitted by the petitioner before the Canal Authorities under section 68-A and according to the contents of the application (Annexure "B" with the writ petition), it is against Khalil Ahmad and Ghulam Sabir, containing a clear statement that: {{URDU TEXT}} ' The second application dated 18-9-1990 (Annexure "C"), is only a reminder of the first application and there are no allegations if the respondents have dismantled the Khal. The third application of the petitioner dated 2-5-1991 (Annexure "D"), for the first time was moved against Abdul Aziz respondent No,8 and his son Abdul Malik mentioning that the petitioner's land is situated in Square No,116 and its Nakka is in Square No,120 and at the site, Khal runs through Killa Nos.12, 9, 2 and through this, the land of the petitioner in Square No,116 was being irrigated, but the respondents (arrayed in' the application) have demolished the Khal from Killa Nos.9 and 2 of Square No,120.
9. Be that as it may, the dispute raised by the petitioner about the restoration of the Khal was conclusively settled by the Divisional Canal Officer vide order, dated 25-3-1999 which order according to the petitioner was set aside in the suit brought by him and Jamshed Ali on the statement of "Ziladar". I am not satisfied if such order/judgment has any bearing upon the rights of the respondents in the litigation brought by the petitioner and Jamshed, because in those cases, the respondents were not a party. It is clear under section 43 of the Specific Relief Act that a judgment and decree to which a person is not party, is not binding upon him and shall not affect his rights. Even otherwise if the petitioner feels that the order dated 25-3-1999 is no more in the field, then why he himself has challenged the same through the present petition.
10. In my view, the key question involved in the case is, whether any Khal had ever existed in the land of the respondents from Nakka No,120/15 to the land of the petitioner within the purview of section 68-A (ibid) and whether it can be restored. Before answering, it may be categorically and clearly mentioned that as per record and even admitted by the petitioner's counsel, the dispute is not the watercourse ever "sanctioned" by the Canal Authorities. The answer to the question has been authoritatively provided by this Court in the judgment reported as Shamas-ud-Din v.
Province of Punjab through Secretary, Irrigation and Power, Lahore and 3 others PLD 1992 Lah. 370, holding that:-- "But what if the dismantled watercourse was not a sanctioned watercourse? Then if it is a case in which "A", in the above illustration has no right whatsoever to use "B's" land for a watercourse and his position is no better than a trespasser, he has no right to the restoration of the watercourse. For the law will not help a mere trespasser and allow a wrongdoer to take advantage of his own wrong.
Section 68-A was not intended to apply to such a case. There is, then, the case in which "A" has a sanctioned watercourse in "B's" land, but instead of using that watercourse, he has been using a watercourse in "C's" land as a licensee and "C" has revoked the licence and dismantled the watercourse in his land. Can "A", in this case, be heard to complain that his supply of canal water has been interrupted? Obviously not, for the Canal Authorities have sanctioned a watercourse for his land and if he, without taking those authorities into confidence, uses another watercourse, he cannot invoke the help of the law, that is, section 68-A. In law his source of canal water is through "B's" land, and as that source is intact, there has been in law no interruption of canal water supply."
' Admittedly, the water supply to the petitioner's land prior to his purchase has been provided from Nakka No,119/18 having sanctioned watercourse through Square No,157. The petitioner obviously should use that land and if he on account of any change in the level which is not otherwise proved on the record, is deprived of this watercourse, must apply to the Canal Authorities for the acquisition of the land for the establishment of a new watercourse. But subject to the above, he under no circumstances can ask to have the water supply through any of the land belonging to the respondents. Besides the above, the judgment of the Honourable Supreme Court has also concluded the proposition in the case reported as Abdul Qayyum and another v. Niaz Muhammad and another 1992 SCM R 613, pronouncing the law as follows:-- "There are three eventualities where a private watercourse or a Khal may be thrown upon by the Canal Authorities for use by another person for passage of water, for irrigation of his lands and lend him aid of any obstruction is caused in the user thereof. Firstly, such right is obtained under a mutual agreement between the parties; secondly, it is secured as an easement and thirdly after acquisition of the land, in pursuance of an application under section 21 of the Act on payment of compensation to the landowner. Unless the landowner gives his consent or a right of easement in respect thereof is acquired by another person, orders by the Canal Authorities for utilization of his property without payment of compensation would be violative of his Fundamental Rights guaranteed under Article 24 of the Constitution. "
' The above two judgments provide a complete answer to the question involved in this matter and thus, in such circumstances, neither the order, dated 25-3-1999 can be set aside, which even otherwise has been challenged after a delay of eight years, nor the petitioner can be given a right to use the land of the respondents. The appropriate course for the petitioner thus, is, as mentioned earlier, to apply to the Canal Authorities for the acquisition of the land for a new watercourse. The writ petition thus, has no merits and is hereby dismissed.
11. As regards the civil revision is concerned, it pertains to the dispute of Warabandi between the parties. It has been categorically stated by Ch. Hameed-ud-Din, learned counsel for the petitioner, that if the writ petition is dismissed, obviously there remains no dispute about the Warabandi and the fate of the civil revision is dependent on the decision of the writ petition. This seems to be a correct legal position as well. Resultantly, as the noted writ petition has been dismissed, therefore, the dispute of Warabandi between the parties has vanished with the result that the impugned judgment and decree, dated 2-6-1998 cannot sustain, which is hereby set aside. In the light of the above discussion, the writ petition is dismissed and the revision petition is allowed.