' IQBAL HAMEED-UR-REHMAN, The instant civil revision has arisen out of the order dated 13-2-2009 passed by the learned Additional District Judge, Faisalabad, whereby temporary injunction has been granted to respondent No,1/plaintiff.
2. Succinctly the facts giving rise to the instant revision petition are that respondent No,3 filed a suit for declaration against the petitioner on 15-7-2008 before the learned Senior Civil Judge, Faisalabad to the effect that respondent No,3/plaintiff is owner in possession of the land falling in Killas Nos.12/3, 13/3, 18, 19, 22, 23 in Square No,48 and Killas Nos.1 to 3 in Square No,51 Kittas Nos.14, 31, situated in Chak No,245/R.B. District Faisalabad. It was further stated that the petitioner attempted to pass a Khaal in between Sq. No,48 and 51 from the land owned by respondent No,3/plaintiff.
Along with the suit an application under Order XXXIX, rules 1 and 2, C.P.C. Was also filed.
3. The learned Civil Judge dismissed the said application vide order dated 21-11-2008. Feeling aggrieved, respondent No,3 preferred an appeal before the learned District Judge, Faisalabad, and the learned Additional District Judge, Faisalabad vide order dated 13-2-2009 accepted the appeal of respondent No,3, set aside the order passed by the learned Civil Judge and accepted the application under Order XXXIX, rules 1 and 2, C.P.C. Holding that section 68-A of the Canal and Drainage Act is not applicable in the case in hand as section 68 of the Canal and Drainage Act holds that Khal can be restored after holding inquiry by the authority if the Khal was sanctioned and existed in the contour plan. It was further held that since the Khal was constructed by the mutual consent of the parties, which was running at the spot but respondent No,3 after purchasing the said land revoked the license of the petitioner and dismantled the watercourse. In such circumstances petitioner cannot invoke the help of the law, therefore, section 68 of the Canal and Drainage Act is not applicable. Hence, this revision petition.
4. The learned counsel for the petitioner states that the order passed by the learned Additional District Judge is arbitrary and capricious. Further states that Sq. Nos.28 and 29 in Chak No,245/RB, Faisalabad belongs to the petitioner along with 30/34 other landowners they are irrigating their lands from the time immemorial more than two decades through the said watercourse passing through the land of Sq. Nos.48 and 51 now belonging to respondent No,3, which respondent No,3 has purchased only 2/3 years ago and even after their purchase the said watercourse remained in tact for 2/3 years upto mid July, 2008 when respondent No,3 dismantled the said watercourse passing through Killas Nos.1 to 3, Sq. No,51 as well as Killas Nos.21, 22 and 23 of Sq. No,48. Respondent No,3 not only dismantled the watercourse but immediately approached the Civil Court with a suit for declaration and permanent injunction impleading the Canal Authorities as defendants Nos.1 and 2 and along with the suit an application under Order XXXIX, rules 1 and 2, C.P.C. Seeking a restraining order due to which the application and proceedings under section 68-A of the Canal and Drainage Act with regard to making temporary arrangements by the Canal Authorities remained pending with the Canal Authorities to restore the existing watercourse, temporarily till the final decision of the case. The plea of respondent No,3 for the grant of temporary injunction was dismissed by the learned Civil Judge, Faisalabad vide order dated 21-11-2008 against which respondent No,3 filed an appeal, the same was accepted by the learned Additional District Judge, vide order dated 13-2-2009, which suffers from legal infirmities, non-reading and misreading, misappreciation and misassessm ent of the documentary evidence on the record as well as misreading of the pleadings, therefore the order passed by the learned Additional District Judge cannot be, sustain in the eye of law. Further states that the learned Additional District Judge has erroneously held that section 68 of the Canal and Drainage Act is not applicable in the instant case, as such, gross illegality has been committed. The watercourse at the site was existed when the same was dismantled by respondent No,3. Further urged that the permanent solution was to be done after inquiry under section 68-A of the Canal and Drainage Act and in this regard reliance has been placed on the case of Abdul Majeed and others v. Iftikhar Ahmad and others 2004 CLC 1951 and Abdul Qayyum and another v. Niaz Muhammad and another 1992 SCM R 613.
5. On the other hand, the learned counsel for the respondent No,3 states that no illegality or jurisdictional error has been committed by the appellate Court as envisaged under section 115, C.P.C. As such this revision petition is liable to be dismissed. It is further stated that the application moved by the petitioner cannot be considered to be an application pending under section 68-A of the Canal and Drainage Act before the Canal Authorities. It has been moved before the President Farmer Organization Dijkot Disty Circle Faisalabad, as such it is no application in the eye of law before the Canal Authorities. It is further stated that in pursuance to the application notice issued has also not been issued by the Canal Authorities. It is further stated that according to the contour plan the alleged Khal does not exist as such there was no sanctioned watercourse and under the law no Khal existed at the spot. At the most the petitioner was licensee of respondent No,3. It is further stated that land of the petitioner in Sq. Nos.29 and 30 has already been getting water from a sanctioned regular watercourse. Reliance has been placed on the cases of Shafiq Ahmad and others v. Abdul Latif Khan and others PLD 1961 L ih. 439, Rao Muhammad Mubin v. D.C.O, Irrigation Department 2007 ( LC 1168 and Shams-ud-Din v. Province of Punjab through Secretary, .Rrrigation and Power, Lahore and 3 others PLD 1992 Lah.
370.
6. Respondent No,2 is represented through Mazhar Qayyum Ziladar, who states that although there was no sanctioned watercourse in the contour plan but at the spot the watercourse had been existing even before the purchase of the land by respondent No,3. The same has been dismantled by respondent No,3 while constructing road.
7. Arguments heard, record perused.
8. Admittedly the watercourse had been in existence even before the purchase of land by respondent No,3 and the petitioner has been irrigating his land from the said watercourse passing through Killas Nos.48 and 49 of respondent No,3. The same has existed since long. Now respondent No,3 has dismantled the same recently and in such situation under section 68-A of the Canal and Drainage Act the Divisional Canal Officer usually give a temporary relief, which order being of temporary in nature is normally kept intact even in the Civil Court until such dispute was finally settled by the Canal Authorities as has been held in the case of Abdul Majeed and others v. Iftikhar Ahmad and others 2004 CLC 1951; When the Khal was constructed with the mutual consent of the parties as that was running at the spot, whether section 68-A of the Act would be applicable as the same does not find sanction and mention in the contour plan, the same is to be decided by the Civil Court after recording evidence of the parties. At this stage, when the Khal existed at the spot and the petitioner and others have been irrigating their land through the said watercourse, therefore, prima facie the ingredients of irreparable loss and balance of convenience leans in favour of the petitioner. Even otherwise the petitioner and others have been using the said watercourse for irrigating their land even after the purchase of land by respondent No,3 for more than 2/3 years with their mutual acquiescence and consent has been present all along and the dismantling the watercourse apparently would certainly cause inconvenience to the petitioner.
Therefore, the order passed by the learned Additional District Judge suffers from irregularities and infirmities.
8. In view of the above discussion, following the dictum laid down in Abdul Majeed and others v.
Iftikhar Ahmad and others 2004 CLC 1951, this revision petition is accepted and the order of the learned Additional District Judge dated 13-2-2009 is set aside. The order passed by the learned Civil Judge, Faisalabad dated 21-11-2008 is upheld.