' ANWAR-UL-HAQ PANNU N, J.-- Through this single judgment Civil Revision Petition No,173-D of 2002.
Civil Revision No,174-D of 2002 and Civil Revision Petition No,175-D of 2002 bearing common title "Hafeez Ahmad and others v. Divisional Canal Officer and others are being decided having arisen out of the consolidated judgment, and decree dated 7-11-2001 passed by learned Additional District Judge, Sahiwal decreeing the suit of respondents by setting aside the consolidated judgment of the trial Court dated 27-6-2001 as common questions of law and facts are involved in all the afore-said revision. Petitions.
2. Precisely the facts of the case are that the plaintiffs/respondents in all the three suits averred in their respective plaints that they were owner of land situated in Chak No,55-A/12-L Tehsil Chichawatni District Sahiwal and they irrigate their land from outlet Nos.10800/TR, 10800/TL and 10800/TF the length of the Minor 1-L is 1800 feet and 5.54 CC water runs in it. The petitioners/ defendants were stated to be owners of land situated in Chak No,56-A/12-L and, have been irrigating their lands through outlet No,15970-3.L/12.L Later on the petitioners/defendants moved an application to the Canal Authorities for change of their outlet on the ground that the outlet wherefrom they were previously .Irrigating their land had been dismantled and the same as not operative. Whereupon the Canal Authorities approved the new outlet No,4200/1.L/3-L/12.L vide order dated 23-12-1998 and 11-5-1999. The respondents challenged the said orders on the ground of being ineffective, result of collusion, and has been passed without hearing the plaintiffs/respondents and even without seeking any proposal from them. They voiced their grievance in the plaint that in case the concerned outlet through the impugned order is allowed to be implemented there will be irreparable loss not only to them rather the other co-sharers as well whose lands were being irrigated from Rajbah 12.L and from Minor 1.L/3.L/12.L.
3. The plaintiffs/defendants in all the suits resisted the contentions of the petitioners by filing written statements, since in all the suits, as mentioned above a common cause of action as well as the facts the parties were involved, therefore, after consolidating all the three suits the learned trial Court proceeded to frame the following issues:--
(1) Whether the plaintiffs have no cause of action? OPD
(2) Whether this Court lacks jurisdiction to try this matter? OPD
(3) Whether the suit is based on mala fide intention and the defendants are entitled to recover special costs under section 35-A? OPD
(4) Whether the plaintiffs are entitled for the decree for declaration as prayed for and the order of defendant No,4 dated 23-12-1998 is against the facts and law, without jurisdiction, based on mala fide collusion passed without hearing the plaintiffs, without notice hence ineffective against the rights of the plaintiffs and the order of appeal by the defendant No,5 dated 11-5-1999 is also against the facts and law and the same is liable to be set aside? OPP
(5) Whether the plaintiffs Bashir Ahmad etc. And Ashiq Hussain etc. Are entitled to recover Rs,25,000 as damages from the defendants as prayed for in the respective suits? OPP
(6) Relief.
' And offered the parties to produce their respective evidence in order to prove their case.
7(sic). The respondents/plaintiffs side in support of their claim produced Muhammad Sadiq Patwari. As P.W.1, Bashir Ahmad, one of the plaintiffs appeared as P.W.2, Naeem-ud-Din Head Draftsman of Canal Department appeared as P.W.3 and Maqbool Ahmad Patwari deposed as P.W.4, Bashir Ahmad Ahlmad, Canal Department gave his evidence as P.W.5, Musli Patwari entered the witness-Box as P.W.6, Muhammad Iqbal Record Keeper, Canal Department as P.W.6. Bashir Ahmad also appeared as P.W.7 in rebuttal as well. The documentary evidence was produced in the shape of blue print of Chak No,55- A/12.L as Exh.P.I, map of outlet No,15970-L/Exh.P.2, copy of the impugned order dated 23-12-1998 as Exh.P.3, copy of the order dated 11-5-1999 as Exh.P.4, copy of the Jamanbandi of Khata No,174 as Exh.P.5, copy of Jamanbandi of Khata No,172 as Exh.P.6, copy of Jamanbandi of Khata No,106 as Exh.P.7, copy of Khata No,123 as Exh. P.8, copy of Jamanbandi as Exh.P.9 and copy of Jamanbandi of Register Haqdaran Zamin as Exh.P.10, copy of site-plan Mark-A and copy of written statement as Mark-B, copy of Aks Shajra Parcha Mark-C, photo copy of application of the plaintiff to CanaI Department Mark-4, copy of application Mark-5, copy of application under section 94 Order XXXIX Rules 1 and 2, C.P.C. Mark.6, copy of grounds of appeal Mark.7, copy of statement and order Mark.8, copy of order dated 7-2-2000 as Mark.9 and copy of order dated 19-5-2000 as Mark.10.
8. The petitioners/defendants in rebuttal produced Muhammad Iqbal Record Keeper Canal Department as D.W.1, Abdul Ghafoor Zilah Dar as D.W.2, Malik Asghar Mehmood as D.W.3, Hafeez Ahmad one of the defendants as D.W.4 and as a documentary evidence produced, produced copy of ICA No,213 of 1997 Mark-A, copy of order dated 21-12-2001 Mark-B, copy of Register Haqdaran Zamin Exh.D-1, copy of Register Haqdaran Zamin Exh.D-2, copy of Register Haqdaran Zamin Exh.D-3 and copy of site-plan Exh.D-4. On the conclusion of trial the learned trial Judge proceeded to dismiss the suits of the respondents vide its judgment and decree dated 27-6-2001. They preferred appeals before learned. Additional District Judge which were allowed, by decreeing the suits, hence these revision petitions.
9. Learned counsel for the petitioners in all the civil revision petitions have submitted with vehemence that the well-reasoned judgment passed by the learned trial Court, dismissed the suit of respondents has been set aside by the learned lower appellate Court not only on the flimsy grounds, but also without discussing the evidence and without giving its own reasoning, hence the same is not sustainable in the eyes of law. It has also been added that the provisions of section 20 of the Canal and Drainage Act is not mandatory in nature as the non-issuance of notice to the concerned persons was within the jurisdiction of the Divisional Officer as the law has given him the discretion for issuance of the notice keeping in view the facts and circumstances of the case, hence the findings of the learned lower appellate Court are not sustainable in this view of the matter. He has further added that the respondents have failed to substantiate their cause by producing evidence of positive nature before the learned trial Court failed in demonstrating that they have to incur a loss on account of the orders passed impugned in the suits, whereas the petitioners are being deprived of water for their own land despite the passing of the order by the concerned authority. The learned counsel has argued with vehemence that the impugned judgment of the learned lower appellate Court is result of non-reading of evidence, hence by exercising the revisional jurisdiction the same may be set aside.
10. On the other hand learned counsel for the respondents has argued that the judgment of the lower appellate Court is result of due appraisal of evidence under taken by the appellate Court. He has argued that the required' notice under section 20 of the Canal and Drainage Act was neither issued to the respondents nor their objections were heard, hence the impugned order is bad in the eyes of law as respondents interest were prejudiced without giving them due opportunity of being heard. He has submitted that respondents have produced a plethora of evidence to substantiate their claim. He has defended the judgment of the lower appellate Court and has prayed for the dismissal of the revision petitions.
11. Learned counsel for the parties have been heard at length and the record appended with revision petitions have also been perused.
12. After going through the judgment passed by learned Additional District Judge dated 7-11-2001, it is observed that the parties led a plethora of evidence (described in paras 7 and 8 of this judgment) in order to prove their respective causes keeping in view, the respective issues, framed by learned trial Judge but the learned Additional District Judge has without considering land discussing the afore-referred evidence of the parties has proceeded to set aside the judgment of the trial Court without giving its own findings, based on evidence, therefore, this Court is of the view that the impugned judgment passed by the learned Additional District Judge is not sustainable in the eyes of law as the same has" been passed illegally by violating the provisions of Order XLI, Rule 31, C.P.C. The learned lower appellate Court, was legally obliged not only to discuss evidence of the parties but was also, bound to give its own reasons for setting aside the judgment of trial Court. The perusal of the impugned judgment passed by the learned appellate Court conspicuously bespeaks that the learned Additional District Judge has kept out of his sight not, only the evidence of the parties but has also failed in giving its own findings on the core issues liable to be determined by him hence it is held that the impugned judgment is not sustainable in the eyes of law as the learned trial Court has failed in exercising its jurisdiction in proper and judicial manner, consequently these civil revision petitions are accepted the impugned judgment dated 7-11-2001 passed by learned Additional District Judge is set aside. All the appeals, shall be deemed, pending before the learned lower appellate Court who shall decide the same afresh A after hearing the parties and considering the evidence available on record in the light of issues already framed within a period of four months being an old matter after the receipt of this judgment. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.