' This Revision Application is directed against the judgment dated 28-5-1981 in Miscellaneous Appeal No, 31 of 1982 passed by the learned Additional District Judge, Hyderabad.
2. The facts which give rise to this Civil Revision are that, the petitioners are joint-owners of Survey Nos. 273, 274, 275, 276, 280, 281, 282, 283, 288, 289, 290, 292, 297, 298, 302, 304, 305, 307, 308 and 309, whereas Survey Nos. 331, 334, 335, 340 and 341 are owned by same other Khatedars, total ad measuring 112 acres, situated in Deh Gujjo, Taluka Hyderabad.
3. It is averred that the aforesaid lands in the above revisions are being irrigated through pumping machine 49 which has been sanctioned in the name of petitioners and was installed at the expenses of the petitioners. The pumping machine 49.L is installed on Linned Channel, Hyderabad City which is also known as Akram Wah with the consent of the owners of the Survey Nos. 331, 334, 340 and 341. The watercourse was excavated as these survey numbers are situated in between 49.L and the lands of the petitioners. In consideration of the consent given by the owners of these five survey numbers, the petitioners had agreed to supply them water for these survey numbers and this arrangement is in operation for the last so many years as the owners of these survey numbers in lieu of the water pay the agreed price to the petitioners which is equal to 1/4th of the produce of these five survey numbers. It is averred that the sanction of pumping machine 49.L in favour of the petitioners, is continuance right from the year 1958. Since the holding of the petitioners was being increased on 49.L pumping machine, so an application was moved to the Executive Engineer for the extension of the irrigating hours and the same were increased from time to time and ultimately the sanction of the irrigation hours was increased upto 16 hours vide order dated 24-7-1977 passed by the Superintending Engineer, Left Bank Construction Circle,
4. It has been averred that one Ali Dino Mughal and Mst. Shamim Akhtar, who were Khatidars of 26 acres of lands in Deh Narejani, Taluka Hyderabad, had family terms with the petitioners and their lands were irrigated from 3-R Ex Husry Distributory of Sukkur Barrage. The said Ali Dino Mughal approached the petitioners and requested for the supply of water for irrigation purpose of his 20 acres of land in Deh Narejani as he had picked up some dispute with some of Khatedars of 3-R Ex Husry Distributory. In response to the request of the said Ali Dino Mughal, the petitioners gave their consent provided he succeeds to get the transfer of his peech from 3-R Ex Husry Distributory to 49.L pumping machine by the competent authority and as such in the years 1974, the then Minister of Irrigation and Powers, Government of Sind, granted permission by his order dated 8-4-1974. It is averred in the above revision that the order dated 8-4-1974 was never implemented and the lands were accordingly being irrigated from 3R Ex Husry Distributory. Holdings of Mst. Shamim Akhtar and Ali Dino Mughal which were sold to respondent No, 5, and after such knowledge by the petitioners, one of the petitioners moved an application to the Additional Secretary for the withdrawal of the order dated 8-4- 974 as well as the consent. On this application the record was called and the proceedings are still pending before the irrigation authorities. It is averred in the above revision that the respondent No, 5, after purchasing the holding of Ali Dino Mughal also continued to get water from original peach, i. e. 3-R Ex Husry Distributory. It is averred that right from 1958 till the year 1980, no share-list was ever prepared or circulated for the distribution of water supply from 49.L pumping machine as it was solely installed and sanctioned in favour of the petitioners. It has been averred that to the utter surprise of the petitioners, the respondents Nos. 1 to 5 have managed on the back of the petitioners to get irrigation water from pumping machine 49.L and got prepared such share-list for the first time in the history of 49.L pumping machine from Rabi 1980, and in pursuance of this share-list another share-list for Kharif 1981 which is quite illegal, unlawful and void ab initio. It has been further averred in pursuance of these two share-lists the respondent No, 5 on the back of the petitioners with the help and connivance of the Aabdar of the beat as well as police from Tando Jam Police Station, came on the site of the installation of the 49.L pumping machine and broke up the lock of room of the pumping machine and tried to get the flow of water for the first time. The petitioners filed a suit in the Court of IIIrd Senior Civil Judge, Hyderabad, for declaration and permanent injunction against the respondents alongwith an application under Order XXXIX, rules 1 and 2, C. P. C. For the grant of ad interim injunction.
5. The respondent No, 5 filed counter-affidavit and has averred therein that the applicants/plaintiffs have no right to exclude the other Khatedars to get water from the pumping machine 491, Akram WA, in accordance with the share-list. The prayer has become infructuous as the share-list for Rabi 1980-81 stood expired and whereas the share-list for Kharif 1981 had been duly implemented and had been getting water as per share-list 1981 from pumping machine 49.L. It has been further averred that Ali Dino Mughal has been getting water from the pumping machine 49.L. The water belongs to the land and the same land getting water previously as well as presently.
The order dated 8-4-1974 of the then Minister was duly acted upon and all the formalities were duly completed as a result thereof the number of hours were increased in 1977.
6. The learned Judge after hearing the parties, granted ad interim injunction by his order dated 5- 5-1981. The respondent No, 5 had filed an appeal before the District Judge, against the order dated 5-5-1981 which was heard by the learned Ist Additional District Judge, who after hearing the parties set aside the order dated 5-5-1981 vide his impugned judgment dated 28-5-1981.
7. In support of the above petition, I have heard Mr. Abdul Qadir Halepota, learned counsel for the petitioners, Mr. Imam Ali Kazi, learned counsel for the respondents Nos. 2, 3 and 4 Mr. Naimatullah Soomro, learned counsel for the respondent No, 5, and the learned Additional Advocate-General, Mr. Abdus Sattar Shaikh for the official respondents Nos. 5 to 9.
8. The following grounds are urged by Mr. Abdul Qadir Halepota :-
(i) That the discretion exercised by the learned Senior Civil Judge, is proper and does not require for interference on the basis of facts on ground.
(ii) The petitioners have made out a prima facie case, and the Appellate Court has erred in holding that the balance of convenience is in favour of the respondents.
(iii) The impugned share-lists cannot be prepared without complying with the mandatory require nents and formalities prescribed by section 91 of the Sind Irrigation Act.
(iv) The respondent No, 5 did not produce any document to the effect that the order of the then Minister was duly acted upon and his predecessors paid the agreed price to the petitioners which is equal to 1/4th of the produce of these five survey numbers.
9. As regards to the contention of the learned counsel for the petitioners that All Dino Mughal and Mst. Shamim Akhtar gave an application to the then Minister for Agriculture that the change of peech from 3-R Ex Husry Distributory to 49.L Pumping machine as there was some dispute between Ali Dino and other Khatedars. The petitioners gave their consent to them. The said Minister granted them permission. According to the petitioners, the said sanction, according to them, the change could not be effected as all the formalities have not been completed and in the meantime, Ali Dino sold the lands to the respondent No,
5. He has further contended that the share-list for 1980-81 Rabi and the list for Kharif 1981 based on the order dated 8-4-1974 of the then Minister are illegal as the respondents Nos. 1 to 5 have managed with respondents Nos 6 to 8 on the back of the petitioners.
The respondent No, 5 with the help and connivance of the Aabdar of the peech as well as Police of the Tando Jam Police Station, came on the site of installation of Pumping machine 49.L, and tried to get flow of water from the said machine. A Mashirnama was prepared which is also on the record.
On the other hand, the learned counsel for the private respondents in reply has urged that the order of the then Minister was duly implemented and predecessor-in-interest of respondent No, 5, was getting water from this pumping machine. That as the petitioners did not provide the facilities as such the respondent No, 5 moved an application before the Martial Law Authorities and on their intervention the respondent No, 5 started getting water w. e. f. 11-4-1981
10. I consider that the contentions raised by the learned counsel of the parties, are such as have a direct bearing on the final disposal of the suit, pending between the parties before the civil Court, and, therefore, any views expressed by me at this stage are likely to prejudice one side or the other.
It is, however, correct that the respondent No, 1 was getting his supply of water from the 14.L Pumping machine w. e. f. 11-4-1981. It is not clear from the record whether the order dated 8-4-1974 was implemented or not. It is also not clear from the record as to whether any notice prior to preparation of share-list for 1980-81 Kharif and Rabi crop was issued to all the Khatedars as provided under Irrigation Act and the Rules framed therein. I would not, therefore, like to interfere in the matter at this stage. The Kharif crop already commenced from September, 1983 and will be over by the end of March, 1984.
11. Before I part with this case, I would like to make it clear that whatever observations made by the Appellate Court should not affect in any way the disposal of the suit, itsif on merit. I direct the learned trial Court not only to expedite the suit, but to dispose it of within four months from the date of receipt of this order. It is opened to the petitioners/plaintiffs to file fresh application for temporary injunction alongwith affidavits and the relevant documents before the learned trial Court. It will be open to the other parties to file further documents and affidavits, if any. But it is clarified that the learned trial Court shall not be influenced by any observation made by the learned Appellate Court or by me in this order and shall be free to decide the case according to merits.
' In the result, the application is disposed of in the above terms. Under these peculiar circumstances, there would be no orders as to costs.