1. ' SAEEDUZZAMAN SIDDIQUI, J.-The petitioner has challenged in this petition the orders of Deputy Commissioner, Sukkur, dated 15th November, 1972 and that of Secretary to Government of Sind- Irrigation and Power Department, dated 10th November, 1973 settling the lands of the petitioner bearing Nos. 96 and 300 admeasuring 9.37 acres situated in Deh Kazi Wah, Tapo Jagan, Taluka Shikarpur, District Sukkur (I will hereafter refer these lands as the 'disputed land') on watercourse (Karia) No, 98-L Ex-Begari Canal.
2. ' The petitioner claims that the disputed land which he had purchased on 20th April, 1954 was settled on watercourse No, 97-L since the time of its purchase. But later on respondents Nos. 4 and 5 started causing obstruction to the petitioner in drawing his share of water from Karia No, 97-L whereupon the petitioner approached Executive Engineer, Begari Division who issued `Roobkare dated 5th June, 1972 in favour of petitioner, certifying that the disputed land was settled on Karia No, 97-L. Respondents Nos. 4 and 5 filed appeal before respondent No, 2 against the above `Roobkari, who allowed their appeal holding that the Karia register did not show that the peach of the disputed land was settled on watercourse No, 97-L. The petitioner then preferred a revision against the order of respondent No, 2 before respondent No, 1 who by his order dated 10th November, 1973 confirmed the order of respondent No,
2. The petitioner has, therefore, challenged both these orders in this petition.
3. The learned counsel for the petitioner has raised two-fold contentions before us. It is firstly contended that the order, dated 15th November, 1972 passed 'by respondent No, 2 is an order without jurisdiction as it was passed without impleading the petitioner as a party in the case and without hearing him. The learned counsel for the respondents jointly opposed consideration of this contention on the ground that it is not raised in the petition. We have seen the memo of petition and find that this plea is neither stated in the facts of petition nor it is raised in the ground. No doubt the contention raised by the petitioner is a point A of law but for its determination certain' factual aspects have to be gone into first. For instance in order to decide the above contention it has to be shown that the petitioner was not made party to the proceedings and that he was not given any notice before the decision of the appeal. The learned counsel for the respondent do not admit these facts and in the absence of these factual allegations in the petition the point cannot be decided on the basis of, oral submission of the counsel. In these circumstances we cannot allow this contention to be raised in the arguments for the first time.
4. ' It is next contended by the learned counsel for the petitioner that the settlement of disputed land on watercourse No, 98-L was a case of transfer of peach from one watercourse to another which could only be done in accordance with the provisions of section 91 of the Sind Irrigation Act. This contention of the learned counsel for the petitioner too does not appear to be correct. The case of respondents Nos. 4 and 5 is that the peach of the disputed land was never settled on Karia No, 97-L and have also denied in their counter-affidavit that the peach of disputed land was changed from watercourse Nos. 97-L to 98-L. They have produced alongwith the counter-affidavit a certified true copy of the peach record of all the survey numbers settled on watercourse No, 97-L which does not mention the disputed land. It is also asserted by the respondents Nos, 4 and 5 in their counter- affidavit that not knowing the fact that the respondents have obtained certified true copy of the peach record of all the survey numbers settled on Karia No, 97-L, the entry with regard to peach of disputed land was manipulated in the record collusively which was also not authenticated by any officer of the concerned department. These facts are not denied by the petitioner and no rejoinder was filed to controvert these allegations. These allegations made by respondents 4 and 5 also find support from the following observations made in the order of respondent No, 1, dated 10th November, 1973 :- "The appellant Mr. Shamsuddin filed the present revision application before this department. The application was heard on 14th May, 1973. After hearing both the parties present, it was held vide this Department No, 15/19-S 0 (R & S)/73, dated 28th May, 1973, that this was a case of determining initial source of peach and not change of peach. The case were, therefore, remanded to Superintending Engineer, Begari Sind Feeder Circle to decide the initial source of peach for the Sr.
5. Nos. Of 96 and 300 of Deli Kaziwah. In the above order, Government had specifically noted with regret the improper maintenance of important record i,e,, Karia registers and command plan etc., by the Executive Engineer. The unauthorised alterations therein were also brought to the notice of Superintending Engineer B. S. Feeder Circle, for taking necessary action against the defaulting subordinates and steps to bring the record up-to-date.
6. ' The Superintending Engineer, Begari Sind Feeder Circle however failed to decide the initial source of perch of Sr. Nos. 96 and 300 of Deh Kaziwah and referred back the case to Government for decision through Chief Engineer, Gudu Barrage Project vide his No, IC/D-55 (g)/2490, dated 10th July, 1973."
7. ' In these circumstances the respondent No 1 was justified in deciding the case as one of initial settlement of perch of the disputed land. The reasons given by respondent No, I in settling the peach of disputed land on watercourse No, 98-L are as follows :- "This being the case, the peach has to be decided according to the principles of natural justice. The record shows that appellants Sr. No, 97 is settled for perch on W. C. 98-L. The Sr. Nos. 96 and 300 are adjacent to Sr. No,
97. The position is such that the W. C. 97-L and 98-L. Ex-Begari are running parallel, both taking off from Begari Canal at nearly the same point and with same F. S. Level.
8. Watercourse 97-L runs on one side of the disputed Sr. Nos. And the watercourse 98-L runs on the other side of the same Sr. Nos. Both the W. Courses are, therefore, equally convenient to the appellant for the perch of Sr. Nos. 96 and 300.
9. ' However W. C. 91-L has a command of 209-32 acres only and W. C. 97-L has a big command of 846-11 acres. The appellant's Sr. Nos. 97 is already settled on W. C. 98-L and there are objections of respondents for settling the Sr. Nos. On W. C. 97-L due to its heavy command. Under the circumstances the perch of the disputed Sr. Nos. 96 and 300 of Deh Kaziwah cannot be allowed W.
10. C. 97-L, and may be obtained on W. C. 98-L Ex-Begari Canal. The appeal is accordingly rejected and the order of Deputy Commissioner, Sukkur No, 14100, dated 30th November, 1972 is upheld."
11. The above reasons given by respondent No, 1 are unexceptionable in the circumstances of the case and we feel that substantial justice has been done to the parties in the case. We accordingly find that no case is made out for our interference in excess of our power under Art. 199 of the Constitution and dismiss the petition but in the circumstances of the case leave the parties to bear their respective costs.