' MIAN SAQIB NISAR, J.---This case has a chequered history and perhaps this is the fourth time, that the matter has come before this Court in its revisional jurisdiction.
2. Briefly stated the facts of the case are that on 11-8-1993, the petitioner brought a suit for declaration and injunction, challenging the order of the DCO, respondent No.2, stated 26-7- 1993,'through which he had directed the restoration of the Khaal in issue, which allegedly was demolished by the petitioner and its restoration was sought by the respondent No.1 under section 68-A of the Canal and Drainage Act. The petitioner's case mainly was that the Khaal was never in existence, therefore, no question of its restoration arise, besides, the respondent No.1, had never moved any application under section 68 of the Canal and Drainage Act, resultantly, the DCO had no authority for the revival of the Khaal, under section 68-A. The suit was contested by the respondents, following issues were framed:--
(1) Whether the order, dated 26-7-1993, of defendant No.1, is illegal, void, based on mala fide, etc. And ineffective upon the rights of the plaintiff? OPP
(2) Whether the plaintiff is entitled for relief of perpetual injunction restraining the defendants from execution of above mentioned order in dispute? OPP
(3) Whether the suit is not maintainable in view of preliminary objection No.2, of written statement filed on behalf of defendant No.3? OPD-3
(4) Relief.
' Parties led evidence and the learned trial Court, vide judgment and decree, dated 30-1-1991, allowed the suit primarily but partly deciding issue No.1, and holding as below:-- "Since in this suit, the validity of order of DCO, dated 26-7-1993, has been challenged on legal grounds so the other matters whether the impugned Khaal has ever been in existence or the same, was dismantled or restored are irrelevant in view of citation 1992 SCM R 613."
3. The other issues involved in the matter in the light of finding on issue No.3, were disposed of, resultantly, the suit of the petitioner was decreed on 30-1-1996; aggrieved of the above, the respondent No.1 preferred an appeal; during the pendency whereof, an application under Order XLI, Rule 27 was moved by the respondent for adducing additional evidence, which application was allowed and the appeal was also accepted on 30-4-1997, with the result that the suit of the petitioner was, dismissed.
4. Petitioner challenged the aforesaid decision through C.R. No.702 of 1997, which was accepted by this Court on 23-9-1997, the case was remanded with the direction to give the petitioner right of rebuttal of the additional evidence allowed to and led by the respondent No.1 and to re-decide the matter. In the post-remand proceedings, learned ADJ again accepted the appeal of the said respondent, through judgment and decree, dated 7-2-1998; petitioner agitated the matter in C.R.
No.212 of 1998, which was allowed and both the parties were permitted to lead further evidence on the question whether any application under section 68 of the Canal and Drainage Act, was filed by respondent No.1 and was pending, when the order, dated 26-7-1993 under section 68-A was passed by the DCO.
5. Again appeal filed by the respondent No.1 was allowed by the Court below vide judgment and decree, dated 25-6-1998 and the suit was dismissed. This judgment and decree was challenged in C.R. No. 1161 of 1998, which was allowed by this Court and the case was remanded to the Court of appeal. The appellate Court through the impugned judgment and decree, dated 21-1-2000, has allowed the appeal of the respondent No.1 resulting in the dismissal of the petitioner's suit, hence this revision.
6. Learned counsel for the petitioner contends that the case was remanded by the Court vide judgment, dated 19-10-1999, in which a clear direction was given to the Court of appeal to decide the case afresh after considering the pleadings of the parties and the evidence on record, but the learned Court has failed to comply with the order. It is also argued that the findings of the learned appellate Court that the application under section 68 filed by the respondent was pending, when the order, dated 26-7-1993 under section 68-A was passed, is absolutely erroneous and against the record; he further submits that the learned Court below has not decided the issue No.1, in its entirety, rather has restricted to only a part of the issue i.e. To the question, whether the application under section 68 was pending or otherwise at the time of passing the order, dated 26-7-1993.
Whereas in the plaint, number of other legal and factual grounds were raised, on the basis of which, the order, dated 26-7-1993 was challenged, but such grounds were not finally decided by the learned trial Court in view of its coming to the conclusion that application under section 68 was not pending. However, when the order was passed by the learned appellate Court finding contrary to the view of the trial Court, it was incumbent upon the appellate Court to have decided the other legal grounds challenging the order of the DCO, raised in the plaint and established through evidence. In particular, it is stated that one of the key and essential part of issue No.1, was if the khaal was ever in existence as alleged by the respondent No.
1. And was dismantled by the petitioner. The petitioner according to Exh.P-4, blue print of the Canal map and warabandi, proved that no khaal as alleged by the respondent, was in existence and therefore, without determining the dispute, the said issue has not been completely adjudicated.
7. Confronted with the above, learned counsel of the respondent has made reference to paragraph 7 of the judgment of the learned trial Court and has argued that as per observation of the Court, petitioner/plaintiff mainly emphasized on the legal proposition about he absence of the applications under section 68, and other grounds raised in the paint were not stressed, meaning thereby that those were given up. So the petitioner cannot now re-agitate the pleas which were relinquished. Reliance in this behalf has been placed the cases reported as Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, and others (PLD 1961 SC 119). It is also submitted that evidence on the record, produced by respondent amply show that the khaal was in existence, through which the land of the respondent was being irrigated and was dismantled by petitioner, therefore, on factual premises also the plea of the petitioner, that there was no khaal is absolutely incorrect and unwarranted.
8. I have heard learned counsel for the parties. As regard the question whether the application under section 68 was pending, when the order, dated 26-7-1993, was passed by the learned DCO, suffice it to say that from the record of the Canal Department, it stands established and the petitioner has not been able to rebut that such application was not pending, when otherwise, was proved by the respondent. However, for the other argument that the appellate Court has not decided the plea about the existence and the demolition of the khaal, suffice it to say that obviously one of the key pleas raised by the petitioner in the plaint is qua this fact. Issue No.1 is a composite and comprehensive enough encompassing this part of the controversy between the parties as well. But the appellate Court did not give finding in this behalf, and only restricted to the question about the pendency of the application under section 68. It may be observed that once the learned appellate Court had come to the conclusion that such application was pending, in that eventuality, it was incumbent upon the Court to have decided the other ground of attack to the order of the DCO, dated 26-7-1993, in the light of the averments of the petitioner made in the plaint, denied by the respondent in the written statement and on which the evidence was led by the parties. Having failed to decide the matter accordingly, the Court below has not decided the issue No.1, and legally in its entirety. It may be pertinent to state here that the said Court also has not considered the effects of the documentary evidence, led by the petitioner, such as Exh.P-4, blue print map of the Canal Authorities, where such khall does not find mention and it is not so established on the record by respondent No.1, through any documentary or oral evidence, if the land admittedly owned by the petitioner was ever acquired against the compensation and official khaal was ever sanctioned/established or that on account of some easement, the respondent had acquired the right from the said channel, which was ever in existence and was subsequently dismantled by the petitioner.
9. I am not impressed by the argument of learned counsel for the respondent No.1, that the petitioner had given up the other pleas, because there is no mention of such pleas in the judgment of the learned appellate Court and in para. No.7, of the judgment of the trial Court, it is observed that mainly the point about the filing and the pendency of the application under section 68 was mainly argued by the petitioner. Because if the appellate Court has omitted to decide a point, no presumption of its giving up can be raised. As for the trial Court, the answer is provided in the reproduced para of the judgment, in para. No.2 herein, according to which, the other pleas were not given up by the petitioner, rather not decided by the Court in view of its deciding another material point.
10. Resultantly, by allowing this petition, the impugned judgment and decree is set aside, but by maintaining the findings of the Court that the application of the respondent under section 68 was pending, at the time when the order, dated 26-7-1993 was passed, the matter is remanded to the appellate Court with the direction that the other plea raised in the plaint, controverted in the written statement culminating and forming part of the comprehensive issue No.1, be decided by the Court afresh, according to the evidence on the record. In consequence of the above, the Court is also required to give its findings on the other issues as well.