'HAFIZ ABDUL REHMAN ANSARI, J.---Through this civil revision under section 115, C.P.C, petitioners Muhammad Aqeel alias Khalil Ahmad alias Gandhi and Shamshad Ali, call in question the orders passed by the learned Additional District Judge, Sahiwal dated 20-5-2009, dismissing the appeal of the petitioners filed against the order dated 25-6-2008 of the Senior Civil Judge, Sahiwal rejecting the application of the petitioners filed under Order XXXIX, Rules 1 and 2, C.P.C. The petitioners pray for setting aside of the above said orders of both the Courts below and to accept the application for interim stay.
2. The bone of contention which gave rise to the filing of the civil suit before the Civil Judge, Sahiwal is dismantling of water-course.
3. Brief facts of the case are that the petitioners are owners of 18 Kanals of land, as described in para No,1 of the plaint, which is being irrigated through outlet No,3016-L/14-L. They irrigated their land falling in square No,40 bearing field Nos.20 and 21. Respondent No,4 is also owner in square No,40 bearing field Nos.16 to 18. He firstly carried water of his turn from fields Nos.1 to 5 of square No,44 which leads to field No,25 of square No,40 and he from this outlet irrigates his land. It is mentioned that the respondent/ defendant No,4 mala fide moved an application before the Irrigation Department under section 68-A of the Canal and Drainage Act in the last week of May, 2007 for restoration of water-course in square No,40, killa Nos.18 and 19, which application was accepted by respondent No,3 Sub-Divisional Canal Officer, Chichawatni, District Sahiwal vide order dated 30-5-2007. The present petitioners assailed the said order by filing a declaratory suit in the civil Court. Along with the suit an application under Order XXXIX Rules 1 and 2, C.P.C. Was also filed for interim stay. The learned Civil Judge vide order dated 25-6-2008 dismissed the application, against which order the present petitioners filed an appeal before the learned District Judge, Sahiwal which was assigned to an Additional District Judge, who vide order dated 20-5-2009 dismissed the said appeal. In the instant civil revision, both the said orders passed by the two Courts below dated 25-6-2008 and 20-5-2009 are being assailed.
4. The learned counsel for the petitioners submits that the defendant/ respondent No,4 moved the application under section 68-A, of the Canal and Drainage Act before the Irrigation Department with mala fide intention and the SDCO passed an order dated 30-5-2007 restoring the dismantled watercourse. Submits that the order passed by the SDCO is illegal, void, against the facts and ineffective upon the rights of the petitioners. Further submits that the order was passed without issuance of any notice to the petitioners-plaintiffs and it is without lawful authority. Further submits that the SDCO is not competent to pass this order while it is only the DCO Irrigation Department competent to restore the dismantled watercourse.
5. I have heard the learned counsel for the petitioners and perused the orders impugned. Both the Courts below gave concurrent findings with regard to the jurisdiction of the SDCO for restoration of the dismantled Khal as well as to the other factual controversy. The learned Civil Judge vide order dated 25-6-2008 dismissed the application of the petitioners filed under Order XXXIX Rules 1 and 2, C.P.C, with the following observation:- "The order passed by the defendant N0.3/SDCO dated 30-5-2007 reveals that some dismantled watercourse has been restored. Copy of the proceedings of SDCO is also available on the file which reveals that the plaintiffs dismantled a long old watercourse whereby irrigation of land of defendant No,4 was stopped. The defendant No,4 moved an application under section 68-A of Canal and Drainage Act for the restoration of the watercourse. On this application SDCO visited the site and he found that the old watercourse has been dismantled by the plaintiffs. Resultantly he passed the order for restoration of the same under section 68-A of the Canal and Drainage Act, 1873. Section 68-A clearly provides power to the SDCO to restore the dismantled watercourse. The said order is admittedly within jurisdiction of SDCO. It seems that the plaintiff firstly dismantled the watercourse and thereafter filed the instant suit when the Canal Department ordered for its restoration. The plaintiffs have not come to the Court with clean hands. Their case also does not seem prima facie arguable one. The balance of convenience leans against the plaintiffs. If the defendants succeed to restore the alleged watercourse the plaintiffs will not face any irreparable loss. On the other hand, if the defendants are restrained to restore the said khal/watercourse the defendant No,4 will be deprived from the irrigation of his land and he will face irreparable loss. The application under Order XXXIX, Rules 1 and 2 of C.P.C, seems devoid of any force."
'Similarly, the learned Additional District Judge, in his order dated 20-5-2009, about the factual controversy between the parties and with regard to jurisdiction of the SDCO for restoration of the dismantled watercourse observed as under:- "The record shows that appellants demolished a watercourse, which supplied water to respondent No,4. This watercourse was restored by the SDCO, Sahiwal exercising his powers under section 68-A of the Canal and Drainage Act, 1873, to save the land of the respondent No,4 from turning barren.
This order was passed during the pendency of an application filed by respondent No,4 under section 68 of the Canal and Drainage Act, 1873. There was no illegality in the order of the SDCO dated 30-5-2007, therefore, the learned Senior Civil Judge, Sahiwal rightly dismissed the application of the appellants for grant of temporary injunction because appellants have no prima facie case and balance of convenience did not lean in favour of granting temporary injunction as there was no fear of irreparable loss to them. There is no illegality or irregularity in the impugned order the same is upheld. "
6. There are concurrent findings of both the Courts below. While exercising jurisdiction under section 115, C.P.C., I would not like to interfere in the orders dated 20-5-2009 and 25-6-2008, passed by the learned Senior Civil Judge and the learned Additional District Judge, Sahiwal, respectively.
Both the orders are well- reasoned. In both the orders it has been held by both the Courts below that the plaintiffs-petitioners firstly dismantled the watercourse, which is also a crime under the Canal and Drainage Act, 1873. It is also held by both the Courts below that the petitioner-plaintiffs did not approach the civil Court with clean hands for grant of ad-interim injunction. I am fortified from the judgments of the Honourable Supreme Court reported as Hakim-ud-Din v. Faiz Bakhsh 2007 SCM R 870, Rashid Ahmad v. Said Ahmad 2007 SCM R 926 and Ghulam Qadir's case PLD 1988 SC 625. In all these referred cases it has been ruled that findings on questions of fact or law, howsoever erroneous, the same may be, recorded by a Court of competent jurisdiction, cannot be interfered with by High. Court, in exercise of its revisional jurisdiction, under section 115, C.P.C, unless such findings suffered from jurisdictional defect, illegality or material irregularity.
7. For the reasons discussed above, I find no illegality or irregularity in the orders of both the Courts below. Resultantly, this revision petition is dismissed in limine.