' KHALID ALI Z. QAZI, J.--- Through the present revision application, the applicants assailed the concurrent findings of two Courts below, viz. The impugned order dated 11-5-2005 passed by the learned Senior Civil Judge, Mirwah in F.C. Suit No,70 of 2004 re: Muhammad Yaqoob and others v.
The Chief Engineer Irrigation and others, rejecting the plaint under Order VII, rule 11, C.P.C. And the impugned judgment dated 11-1-2007 and decree :ated 13-1-2007 passed by the learned 1st Additional District Judge, Khairpur in the Civil Appeal No,52 of 2005, dismissing the appeal and maintaining the order of the trial Court.
2. Facts leading to the present revision are that the applicants filed the F.C. Suit No,70 of 2004 re: Muhammad Yaqoob and others v. The Chief Engineer Irrigation and others for declaration and permanent injunction in the Court of learned 1st Senior Civil Judge, Mirwah, stating that the applicants are owners of the S.Nos.381/1 and 38/2 total area 3-24 acres situated in Deh Warryam Wandiar Taluka Mirwah District Khairpur. The applicants inherited the disputed land and it is mutated in names of the ancestral of the applicants. The disputed land is settled under command of the watercourse No,56-R Ali Bahar Wah. The share list prepared in this behalf is in tact as yet. The respondent No,6 is owner of the S.No,37/3-37 acres situated in Deh Warrayam Wandiar. The S.No,37/3-37 acres is adjacent to the survey numbers owned by the applicant. The applicants are irrigating the survey numbers through the watercourse No,56-R. The respondent No,6 was irrigating the S.No,37 through the watercourse No,57-R. The respondent No,6 purchased the S.No,37 from Inayat Ali Lund in collusion with the revenue staff respecting the S.No,37 and others. The respondent No,6 moved the application for transfer of source of supply of the water to his land from Watercourse No,57-R to Watercourse No,56-R. The applicants moved the application to the Deputy District Officer (Revenue) Mirwah, for correction of the false entry who allowed the application. The respondent No,6 filed the appeal before the District Officer (Revenue) Khairpur who maintained the order passed by the Deputy District Officer (Revenue). The respondent No,6 during pendency of the above proceedings managed the transfer of source of supply of his land from Watercourse No,57- R.The applicants approached, the respondents Nos.2 to 5 for cancellation of transfer of source of supply of the water to the land of the respondent No,6 who failed to take any action. The dishonesty crept in mind of the respondent No,6 he attempted to excavate the Kassi from the land owned by the applicants. The applicants foild his attempts and respondent No,6 was annoyed. The respondent No,6 quarrels the applicants and Nekmards of the locality made the Faisla against the respondent No,6 and respondent No,6 in the last month again came at the site along with the defendants Nos.4 to 5 and attempted to excavate the Kassi from the Kabooli land of the applicants. The applicants offered strong resistance. The respondents Nos.4 and 5 hurled threats to the applicants for forcible excavation of the Kassi through the Kabooli land of the applicants. The crop is standing in the survey numbers. The Kassi cannot be excavated from the survey numbers owned by the applicants in such a manner and fashion. There was no alternative remedy available to applicants except to file the suit before the learned Senior Civil Judge, Mirwah. The respondents Nos.1 to 5 filed the written statement who denied the allegations. The respondent No,6 alleged that he used to irrigate the S.No,37 through the Watercourse No,57-R. The respondent No,6 applied for transfer of source of supply of water to his land which was sanctioned by the respondent No,2 as required under section 91, Irrigation Act. The transfer of source of supply of water to the land of the respondent No,6 is in accordance with law. The respondents Nos.1 and 2 also raised the legal objections. The respondent No,6 also filed the written statement and he denied the ownership of the applicants over the S.Nos.38/1 and 38/2. The respondent No,6 claimed that he is owner of the S.No,37. The respondent No,6 made application to respondents Nos.1 to 5 for transfer of source of water supply of the survey number of Watercourse No,56-R-5, who allowed the applications under section 91, Irrigation Act. The respondent No,6 filed the application under Order VII, rule 11, C.P.C. On the grounds that the suit is hit by section 91, Irrigation Act, plaint does not disclose the cause of action and transfer of source of supply of water was allowed by the respondents Nos.1 to 5. The applicants filed the objections on the application and denied the allegation but the learned Senior Civil Judge, Mirwah rejected the plaint under Order VII, rule 11, C.P.C.
4. I have heard learned counsel for the parties and learned A.A.-G. And also perused the record.
5. Mr. Kalander Bakhsh Phulpoto learned counsel for the applicants has argued that the impugned order and judgment are much against the law, facts, equity and good conscience. The learned Courts below have greatly erred in law in passing the impugned order and judgment and have failed to take into consideration the factual and legal aspect of the case. The learned Courts below have passed the impugned order and judgment on the grounds which were not available to the respondent No,6. He has further argued that the provisions of Order VII, rule 11, C.P.C. Are not attracted to the present case. The learned Courts below have not taken into consideration the averments made in the plaint. The applicants claimed different reliefs which are separately valued and raised the serious question regarding transfer of source of water supply and excavation of the Kassi from the land forcibly. The prayers made in the plaint cannot be read in isolation. The suit was maintainable in law and plaint disclose the cause of action. The application under Order VII, rule 11, C.P.C. Is misconceived and barred under the law. The respondents Nos.1 to 5 ingrate violation of the Irrigation Act, allowed transfer to source of supply of the water to S.No,37. He has further argued that the applicants were not heard and no reasonable opportunity was allowed to the applicants to represent the case and applicants were condemned unheard. The principles of natural justice have been violated and in fact the provisions of Order VII, rule 11, C.P.C. Are misconstrued. No speaking orders were passed by the respondents Nos.1 to 5 in this behalf as required under the law.
The Civil Court is ultimate jurisdiction to examine the validity and legality of the orders passed by the respondents Nos.1 to 5. The factual controversy is raised in the present case which requires settlement of the issues and trial on basis of the merits; the learned trial Court below have failed to apply the judicial mind to the present case. He has argued that the Courts below have committed illegalities and material irregularities and also failed to exercise the jurisdiction. The learned Courts below are competent to grant the relief to the applicants in the attending circumstances. The present revision is maintainable and is within time. In support of his arguments he has relied upon the following case-law reported in PLD 2003 Kar. 303, PLD 1970 SC 180, 2007 SCM R 554, 2007 SCM R 914, PLD 2008 Kar. 458, 2004 CLC 1029, PLD 2007 SC 609 and 2008 SCM R 428.
6. Conversely, Mr. Abdul Qadir Bhatti learned counsel for the respondent No,6 has argued that the learned Courts below have rightly passed the orders and he has also supported the orders of the lower Court to be based on sound and cogent reasons. He has further argued that sanction of transfer of command of watercourse in favour of respondent No,6 was in accordance with provision of section 91 of Sindh Irrigation Act and the respondents committed no illegality. The applicants before the respondent No,1 did not challenge the said sanction, therefore, the applicants did not avail the proper remedy but he directly approached to the learned lower Court seeking the relief of declaration to the effect that the act of respondents Nos.2 and 3 be declared as illegal.
Therefore, without exhausting proper femedy before the appellate forum the filing of the suit before the Civil Courts was not maintainable due to which the plaint of the applicants was rightly rejected.
He has further argued that the orders of the Courts below does not require any interference at this stage. The suit of applicants was hit by section 91 of Irrigation Act, 1879 hence does not disclose the cause of action. The peach from Watercourse No,57-R Ali Bahar Wah has been allowed to the respondents on Watercourse No,56-R legally and lawfully by the Irrigation Authorities, Khairpur, therefore, the plaint of applicants was rightly rejected under Order VII, rule 11, C.P.C. And present civil revision is not maintainable under the law and same is liable to be dismissed with special costs.
7. Mr. Muhammad Iqbal Mahar, Assistant Advocate-General appearing on behalf of the official respondents on the other hand adopted the same arguments as advanced by the learned counsel for the respondent No,6 and also supported the order of the lower Court.
8. I have heard learned counsel for the parties and perused the record and relevant law cited at the Bar and given due consideration.
9. After hearing the learned counsel for the parties there is little doubt that the applicants have made out a good prima facie case for the investigation of various points which have been raised by them in the suit. It is for consideration whether at any time, he was served with notice of the proceedings which were taken against their interest by the authorities. It is further for consideration whether the mandatory provision of section 91 of Sindh Irrigation Act, 1879, provides that for the change of the course of water supply of any land by transfer of land that land to the existing watercourse, the requirement is service of a notice on the owners of watercourse calling upon them to state in writing their objections, if any, as to the change of the source i,e, shifting of the land to their watercourse. If no objection is raised within 30 days from the date of service of the notice then only the Canal Officer i,e, Executive Engineer concerned can change the source of water supply of the land.
10. In the present case it is claimed by the applicants that no notice was served upon the owners of the watercourse individually. There is therefore, much before in the contention of the learned counsel for the applicants that there are important questions involved in the suit which require determination by the Civil Court.
11. The learned trial Court and Appellate Court have rejected the plaint of the suit of the applicants on the ground that section 91 of the Sindh Irrigation Act, 1879, is a bar to the suit filed by the applicants in Civil Court. This provision of law reads as under:--- "Power to change source of water supply.--- (1) Whenever it appears to any Canal Officer not inferior in rank to an Executive Engineer that is expedient to change the source of water supply of any land for the more efficient distribution of water he shall serve a notice on the holders of the land and, if he proposes to transfer the source of water supply of the land to any existing watercourse, on the owner or owners of the watercourse also, calling upon them to state in writing their objections, if any, as to the source or alignment or construction of the proposed watercourse."
12. On bare perusal of the above provision of law, it reveals that under it ordinarily a party in subject-matters should exhaust all his remedies by way of filing reference appeal to the Collector and then revision before the Revenue Commissioner before invoking the jurisdiction of the Civil Court. It is well-settled principle of law that there are different consideration where the allegation of a party is that the impugned order is nullity in the eye of law. There is apex authority that in such cases the jurisdiction of Civil Court is not barred. This aspect of the question was considered by the appellant counsel in the case of Secretary of State v. Mask and Company AIR 1940 PC 105. It was held in that case that it is also well-settled that even if jurisdiction is not exhausted, the Civil Court has jurisdiction to examine into case where provisions of Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of jurisdiction of the Honourable apex Court and this Court as well. Reference is invited to the case of Begum Syeda Azra Masood v. Begum Noshaba Naseem and others 2007 SCM R 914 wherein the Honourable Supreme Court examining of large number of authorities on the point of ouster clause in any statute has held that an ouster clause in any statute will only apply when the authorities constituted therein act within the four corners of the statute and if they step out of it, the protection available to the order passed by a Tribunal of special jurisdiction is no more available and Court of plenary jurisdiction could examine the controversy.
13. I have held in the case of Rais Ghulam Samar through Secretary v. Mansoor Sadiq Zaidi 4 others PLD 2008 Kar. 458 that it is an elementary principle of law that plaints cannot be rejected piecemeal. Even if one prayer is maintainable, the plaint could not be rejected under Order VII, rule 11, C.P.C. If there is any authority needed for this proposition. It is Younus Textile Mill v. Muhammad Fazal Tayab 2004 M LD 1081. The elementary principle founds in section 9 of the C.P.C. Is that the Civil Courts are the Courts of ultimate jurisdiction, which will continue to jurisdiction assume in respect of civil matters, unless their jurisdiction is expressly or impliedly barred.
14. The judgment relied upon by the learned counsel for the applicants are applicable in the instant case. In my humble view this well established principle as laid down in the above cited authorities are also applied to the facts and circumstances of the present case, Upshot of the above discussion is that the order passed by the learned trial Court and the judgment and decree passed by the Appellate Court are not sustainable and are hereby set aside. Consequently, the Civil Revision No,13 of 2007 is allowed with costs and C.M.A. No,236 of 2007 stands disposed of. It is expected that the learned Senior Civil Judge, Mirwah may conclude the proceedings of the Suit No,70 of 2004 within six months.