This revision petition has arisen out of the judgment passed by the learned District Judge, Badin, whereby he dismissed the Civil Appeal No. 13/79 filed by the petitioner against the judgment and decrees passed by the learned trial Court in Suit No. 133/76.
2. The facts relevant to this case are that respondents Nos. 4-16 are the owners in possession of Surveys Nos. 27 and 28 in Deh Sandli and Surveys Nos. 146, 164, 165, 166, 180 and 383 in deh Lundhi, Taluka and District Badin, have been irrigating the aforesaid lands by watercourse 29/L Ex--- Marwah. Their case in the trial Court was that they have been irrigating their above lands by the aforesaid watercourse since time immemorial and that there is no other watercourse existing on the site and none can be excavated because of the intervening lake. However, on 11th June, 1976, the Sub-Divisional Officer, Badin, Sub-Division issued notice requiring the plaintiffs not to irrigate the land from the aforesaid watercourse. This led the plaintiffs to file the above suit in the Court of Senior Civil Judge, Badin. The suit was contested by Narayan, the petitioner above named who was defendant No. 4 in the suit. The plea of the petitioner in the written statement before the trial Court was that the plaintiff's land was never irrigated by Watercourse No. 22-L and that land of petitioner is settled on the said watercourse. He further pleaded that taking of water from the aforesaid Watercourse No. 23-L by the plaintiff's was an infringement of his rights and interference in cultivation of his lands.
Written statement was also filed by the defendant No. 3 who is the Executive Engineer Phaleli .Canal Department, Hyderabad, whereby the claim of the plaintiffs was denied.
3. On the pleadings of the parties number of issues were framed and thereafter the evidence of parties was recorded. The plaintiffs produced Ghulam Mohammad Exh. 71, Gut Mohammad, Exh. 78, Sahib Khan Exh. 85 in support of their case while the petitioner defendant No. 4 examined one Preen Exh. 89.
The learned Civil Judge inspected the site on 29th June, 1976 and the note of his inspection No. 16 is on the record, which reads as follows :- "The site has been inspected in presence of Mr. Jhamatmal learned Advocate for the plaintiffs, Mr. Nazir Hussain Shah learned A.-G. P. And Mr. Nazir Hussain Mughal S. D. O. Irrigation Sub-Division Badin. In some portion of land of plaintiffs, there is paddy and sugar--cane cultivation. Sugarcane is said to have been cultivated about 4 months back. Watercourse 29/L is flowing by the side of the lands of the plaintiffs. Watercourses 30/L and 31/L are not in existence at site. The same are said to be about 2-- miles distances from the lands of plaintiffs, upto the lake, from where admittedly the same cannot be laid upto the lands of the plaintiffs due to intervention of lake. It is said that sanctioned position of these water--courses is different and if the same are excavated from the sanctioned position, the same will reach to the lands of the plaintiffs."
4. The learned trial court as well as the first Appellate Court on appreciation of the evidence on record and in the light of the site inspection made by the learned Civil Judge to clarify the evidence on record held that new Watercourses No. 30/L were never excavated and that provision for these new watercourses was nothing more than mere proposals made on paper at the time of creation of Kotri Barrage and remodelling Mirwah in 1964 but no work was done on site and thus the plaintiffs lawfull continued to get water from the Karaya which exists in the shape of Watercourse No. 29/L Exh. Mirwah.
The impugned order was found by both the Courts to have been passed against the plaintiffs witness first complying with the mandatory requirements of section 91 of the Sind Irrigation Act or giving any notice to show cause opportunity of being beard to the plaintiffs.
Accordingly the impugned order was declared as void and the suit was decreed by the trial Court as prayed, which judgment was upheld in the appeal by the learned first Appellate Court.
5. Aggrieved with the findings of the learned two Courts this revision petition has been preferred.
Mr. Kishin Chand, the learned counsel for the petitioner has submitted that the three watercourses were modelled and one of them is Watercourse No. 29/L and the other two are 30/L and. 31/L.
According to him the Watercourse 29iL is allowed to the petitioner alone and that the re3pondents Nos. 4-16 have no right to take water of the same as they have already been allowed and their lands settler on the Watercourses Nos. 30/L and 31/L. He however could not controvert the findings given by the learned two Courts below, that the allocation of Watercourses Nos. 30/ L and 31/L are merely on paper and that these watercourses do not exist on this site.
I have carefully considered the arguments of the learned counsel for the petitioner and find that the evidence on record clearly established that the plaintiffs/respondents Nos. 4-16 have all along been setting water for W. C. 29/L Exh. Mirwah had continued to do so legally even after the so- called remodelling which took place in 1964. As to Watercourses Nos. 30/L and 31/L the same do not exist on this site and are nothing more than G mere proposals as rightly held by the two learned Courts below.
No exception can also be taken to the findings given by the learned courts below that the impugned order/notice dated 11-6-1976 is vitiated as no notice or opportunity of being heard was given to the plaintiffs/ respondents Nos. 4--16 prior to the passing of the said order.
6. Reference may here be made to the case of Ghazanfer Khan v. Taj Mohammad (1970 SCMR 139) which supports the case of the plaintiffs/respondents Nos. 4-16 that they have vested rights in the water by virtue of their occupation and right of cultivation of their land and as they had not been notified before the new mode of watering was ordered on 11-6-1976, the said order was not binding on them.
I may also refer to yet another case of Mohammed Ismail v. Mohammad Sadiq (1971 SCMR 653) where the Hon'ble Judges of the Supreme Court held that the principle of audi alteram partem would apply to a case where the consequences of giving extra water to a person would have the effect of reducing the supply of water given to the other party. It is not disputed that the impugned order would result in completely depriving the plaintiffs from taking any water for their lands. The impugned order therefore cannot be sustained in the circumstances and is vitiated as being' against the principles of natural justice.
7. The impugned order dated 11-6-1976 also cannot be sustained on the ground that it was passed without complying with the mandatory requirements and formalities prescribed by section 91 of the Sind Irrigation Act.
The aforesaid section 91 expressly provides that when ever it appears expedient to the Authorised Officer to change transfer the source of water supply of any land he shall serve a notice on the holders/owners of the land, invite objection in writing and give them responsible opportunity of their heard.
8. The learned counsel for the petitioner lastly contended that if the Respondents Nos. 4-6 are allowed to take water from M. C. 29/L the petitioner would be deprived of water for his lands and thus he would suffer serious loss. The above submission of the learned counsel finds no support from the evidence on record. The petitioner who had filed the written statement and verified the same did not appear in the witness box and submitted to cross-examination in support of the case set up by him and as such the plea raised by the learned counsel is without any substance. The Hon'ble Supreme Court in Mst. Khairunissa's case (PLD1972SC25) made the following observations which in the above circumstances fully apply to the present case :- "It is a setted law that it is the bounden duty of a party personally knowing the whole of circumstances of the case to give evidence on his behalf, and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case."
9. In the circumstances of the case I find that the impugned order dated 11-6-1967 was passed without complying with the mandatory requirements of Sind Irrigation Act and is vitiated being against the principles fro natural justice.
No illegality or infirmity could be pointed out by the learned counsel for the petitioner in the concurrent findings given by the learned Courts below.
There is thus no force in this revision petition which is accordingly dismissed in limine.