Through this civil revision, the petitioners have impugned the judgment and decree dated 20.12.2000 passed by learned Additional District Judge Bahawalnagar who accepted the appeal of the respondents and set aside the judgment and decree dated 15.02.1994 passed by learned trial Court whereby the suit of the petitioner was decreed.
2. Briefly stated the facts leading to the filing of this civil revision are that the father of the petitioners namely Abdul Aziz filed a suit for declaration challenging the orders dated 24.07.1985 and 15.05.1989 passed by Divisional Canal Officer, Bahawalnagar and Superintending Canal Officer, Bahawalnagar respectively whereby the supply of water to the land of the plaintiff was terminated.
It was stated in the plaint that he is owner of agricultural land measuring 5 acres, comprising Square No, 20, Killas No, 6,7, 14 to 16, situated in Chak No, 89/F, Tehsil Hasilpur, District Bahawalpur, which is being irrigated from outlet No, 101/F (Fateh Canal) for the last 50 years. It was averred that the said orders were issued without notice to the petitioners, therefore, the same are inoperative upon the rights of the plaintiff and were liable to be set aside.
3. The suit was resisted by Defendants No, 3 to 10. Keeping in view the divergent pleadings of the parties, the learned trial Court framed as many as six issues including that of relief. After recording oral as well as documentary evidence adduced by the parties, learned trial Court proceeded to decree the suit of the plaintiff/father of the petitioners vide judgment and decree dated 12.11 1991.
However, in appeal, the case was remanded. The trial Court again decreed the suit in favour of the petitioners' father vide judgment and decree dated 15.02.1994. Feeling dissatisfied, Defendants No, 3 to 10 filed an appeal which was allowed and the findings of learned trial Court were reversed by the learned Additional District Judge Bahawalnagar vide judgment and decree dated 06.02.1995 on the ground that the trial Court/civil Court, Bahawalnagar had no jurisdiction to entertain the suit.
The plaintiff challenged the judgment and decree dated 06.02.1995 in Civil Revision No, 65/1995.
After death of plaintiff Abdul Aziz, present petitioners being his legal heirs were impleaded in this case. The civil revision was allowed vide judgment dated 23.05.2000 holding that the civil Court at Bahawalnagar had jurisdiction to deal with the mater and the case was remanded for decision on other issues to learned Additional District Judge Bahawalnagar who accepted the appeal of Defendants No, 3 to 10 and set aside the judgment and decree dated 15.02.1994 passed by learned trial Court resulting in dismissal of the suit of the petitioners. Hence this civil revision.
4. Learned counsel for the petitioners inter alia contends that the impugned judgment and decree passed by learned lower appellate Court suffers from material irregularities and misreading/non- reading of evidence; that the learned Additional District Judge has passed the impugned judgment in a slipshod manner based on his findings on Issue No, 5-A alone; that the learned Additional District Judge has failed to appreciate the evidence produced by the parties in its true perspective; that it is evident from the evidence available on record that the plaintiff was condemned unheard and no notice was issued to him prior to discontinuing water supply to his land but this important fact has altogether been ignored by learned lower appellate Court; that the learned trial Court has rightly observed that riges of thumb impressions allegedly put by the plaintiff over the alleged notice were almost missing, therefore, the thumb impressions were of no consequence; that the Canal Authorities were under legal obligation to give cogent reasons for termination of water supply as required under Section 20-B of the Canal and Drainage Act but they have failed to proffer any such reason; that the Superintending Canal Officer has confirmed the order dated 15.05.1989 passed by Divisional Canal Officer vide order dated 24.07.1985 after lapse of four years whereas under Section 20-B of the Act, any such order is required to be confirmed after expiry of only 30 days and not after long period of four years; that the judgment and decree of learned lower appellate Court is perversed and against law and fact, therefore, this civil revision be allowed, the judgment and decree of learned lower appellate Court be set aside and the judgment and decree of learned trial Court be restored.
5. On the contrary, learned counsel for the respondents has vehemently opposed this civil revision and fully supported the impugned judgment and decree. He avers that the impugned judgment and decree is in accordance with law. He states that the learned Additional District Judge has passed the impugned judgment after due appraisal of evidence available on file. He asserts that the learned counsel for the petitioners has failed to point out any illegality in the impugned judgment, therefore, this civil revision be dismissed.
6. Arguments advanced by learned counsel for the parties have been heard and the record available on file has also been perused.
7. The petitioner was non suited by the learned Additional District Judge on the basis of his findings on Issue No, 5-A which reads as under: ISSUE NO. 5-A Whether the impugned orders dated 24.07.1985 and 15.05.1989 having been passed by the Defendants No, 1 & 2 respectively are illegal, against facts, without notice and being mala fide the same are ineffective upon the rights of the plaintiff? OPP The onus to prove this issue was upon the petitioners/plaintiffs who produced four witnesses including himself. PW-1 Muhammad Saleem, who is an official witness being Record Keeper of Sadiqia Canal Division Bahawalnagar deposed that according to his record the disputed property was a command nature but the sanctioned water supply was cancelled by the order of Superintending Canal Officer (SCO), notice u/S. 20-B of the Canal and Drainage, Act was not given to the petitioners/plaintiffs. In cross-examination he stated that the proceedings under Section 20- B were pending since 18.07.1982. The property was got levelled by Canal Department, a notice was given to the petitioners/plaintiffs for cultivation of the land but he did not do it. No notice was brought on the record by the said witness even during the Courts of cross-examination. PW.2 Muhammad Sharif deposed that the property of the petitioners/plaintiffs is cultivated and there is an orchard upon it; no notice was given before cutting the water supply and-area is levelled. In cross-examination the defendant was unable to shake the credibility of the said witness. PW.3 Nazeer Ahmad also deposed in the similar manner and PW.4 Abdul Aziz the plaintiff while appearing his own witness deposed that he is irrigating his land by canal water for the last 20 years. He further deposed that no notice was ever issued before the disconnection of water supply; neither he was informed nor ever heard and on account of illegal disconnection of water his orchard and crops are being damaged. In cross-examination he denied the suggestion that he was served through any notice. He volunteered that had he been served he must have appeared before the authority he showed his ignorance whether he filed any appeal before the Superintending Canal Officer or any application before the Divisional Canal Officer, volunteered that as the area is cultivated therefore there was no need for filing any application.
8. No notice was confronted to the petitioners/plaintiffs by the defendant nor any copy of alleged notice was produced in the Court. In rebuttal, DW.1 Muhammad Abdullah deposed that a notice was given to the petitioners/plaintiffs to improve his land from own irrigable land then canal water will be sanctioned. He deposed that in 1985 X.EN made the spot inspection and cancelled the water of the petitioners/plaintiffs u/S. 20-B which was duly accorded in the year 1989 by the Superintending Engineer. In cross-examination he admitted that for the last 4/5 years the plaintiff is watering his land. He admitted that there is an enmity between him and the plaintiff. DW.2 Muhammad Ashraf could not improve the case of the defendant who deposed that the plaintiff was issued notices to improve the nature of the property. He has not uttered even a single word that any notice was served upon the plaintiff before disconnection of water. He admitted in his cross-examination that the DCO decided a case in 1985 whereas the Superintending Canal Officer made his decision in the year 1989. He admitted that as per record of revenue the disputed property is commanded. D.10 Abdul Majeed, Record Keeper Sadiqia Division, Bahawalnagar deposed that a notice u/S. 20 of Canal Act was given to the plaintiff which was duly served and thereafter the case was decided on 24.07.1985. In cross-examination he admitted that no application for cancellation of water of the plaintiff was made. He admitted that the proceedings are initiated by the Canal Department on, the basis of any application. This witness also failed to produce and place on record any alleged notice served upon the plaintiff. DW.4 Amanat Ali Ziladar in his examination-in-chief stated that the disputed property is in his area. Further deposed that the area of the plaintiff is 13 acres wherein 'Killajat' Nos, 6,7,14,15 and 16 of Square No, 20 are Tarazi'.
In cross-examination he admitted that there is an orchard with fruit trees which are 5 to 6 years of age. Further admitted that the property of the plaintiff is irrigable. Volunteered that 5 acres of land is irrigated by lifting the water. As regards the documents produced as Exh.C1 whereupon there is alleged thumb mark of the plaintiff which was sent for comparison to the Finger Print Expert. I am clear in my mind that this document Exh. Cl could never been termed as notice u/S. 20-B of the Canal Act rather it is a Tard Raqba Malkan'. It is further noticed that the said thumb mark was never admitted by the plaintiff and even not confronted to the plaintiff when he appeared as PW.4. All the other witnesses produced by the defendant could not improve their case. The appellate Court below has wrongly emphasized upon the statement of DW.4 who visited the spot in the year 1993.
The statement of DW.4 is not supported by any record. In my opinion the findings of learned appellate Court on this issue by way of which the judgment and decree passed by the trial Court was set-aside is quite sketchy in its nature. It is mandatory requirement of law u/S. 20-B of the Canal Drainage Act that before cutting the water supply a notice is to be served upon to the land owners. Section 20-B ibid is reproduced for ready reference:-- "[20-B. Cutting of supply for any land not being irrigated.--(1) Whenever, on an application or otherwise, Divisional Canal Officer considers it expedient to terminate the water supply of any land which cannot be used for agriculture or has become unirrigable, he shall give notice of not less than fourteen days to the land-owners and the persons responsible for the maintenance of the water-course through which such supply is conveyed, to show-cause why such supply should not be cut off and after making enquiry, the said Canal Officer may pass orders to stop the complete or partial supply of water.
(2) After the expiry of thirty days of the announcement of the decision by the Divisional Canal Officer, if no objection is received and after giving due opportunity of hearing, if any objection is received, the Superintending Canal Officer may confirm or modify it. The decision of the Superintending Canal Officer shall be final and binding of the parties concerned.]"
In view of this mandatory requirements of law the entire subsequent proceedings conducted by Respondents No, 1 and 2 are unwarranted, illegal and unlawful which cannot be sustained and the trial Court below rightly decided Issue No, 5-A which is interlinked with Issue No, 5, in favour of the petitioners/plaintiffs.
9. In view of discussion above, this civil revision is accepted and the judgment and decree dated 20.12.2000 passed by the learned appellate Court is set-aside and the judgment and decree dated 15.2.1994 passed by the learned trial Court is upheld.