' After having heard the learned counsel for the parties in this appeal for some time it appears to me that the decision of the learned Civil Judge on the question of the ownership of the watercourse, in between the land pre-empted by the respondent, and the land of the respondent has been decided in the absence of any evidence on record and it is merely based upon inferences which the learned Civil Judge has drawn in respect of ownership of the watercourse by interpreting sections 21 to 25 and section 92 of Sind Irrigation Act, 1879.
2. In para. 7 of the written statement the present appellant had taken a position that the land of plaintiff was separated by watercourse No,23/1 Ratwiani minor, but there was no issue framed in respect of the ownership of Ratwiani minor and appears that issue No,1 "whether the plaintiff is Shafi-e-Jar" was regarded as sufficient for determination of the suit on this point. It has been contended by the learned counsel for the appellant that there is Watercourse No,23/1 in between the two lands and that there was no evidence on record as to whom the said watercourse belonged. It is admitted on record that such watercourse exists in between the two lands. However, neither the plaintiff/ respondent nor the defendant/appellant made any efforts to prove as to whom the said watercourse belonged. The learned Civil Judge decided the ownership of the said watercourse on the basis of 3 possibilities, namely, that the watercourse was either on the land of the plaintiff or it was on the pre-empted land or it was half on the land of the plaintiff and half on the pre-empted land and thus he came to the conclusion that the right of vicinage (Shafi-e-Jar) was not destroyed as the two lands, in any one of the above 3 possibilities had to be contiguous to each other.
3. However, there are three more possibilities in respect of the ownership of the watercourse and they are (1) that the watercourse could belong to the Government itself and even the bed of the watercourse could belong to the Government as visualized in AIR 1946 Sind 55. But there is no evidence on the present record that the bed of this watercourse belongs to the Government in this case and, therefore, I cannot decide this appeal on that basis. There are two more possibilities that this watercourse could belong to some other person who could have got it constructed under the provisions of sections 17 to 20 of the Sind Irrigation. Act and he could be the owner of the same as provided under sections 19 and 20. Further possibility is that there could be many joint owners of the watercourse and it could be possible that either the plaintiff or the previous owner of the pre- empted land could be some of the joint owners, but unfortunately there is no evidence on record before me on the basis of which I could make a decision about the ownership of the bed of the watercourse at this stage.
4. I may state here that the learned trial Judge appears to have proceeded on the assumption that in case the bed of the watercourse belonged to some 3rd party, then the right of vicinity could be lost, although he has not stated so clearly in his judgment. It, therefore, appears to me that in order to determine whether the right of vicinage continues in spite of the presence of watercourse between the lands, it is necessary that the ownership as well as the width and depth of the watercourse and the effect of its presence on the right of vicinage, should be clearly determined.
' I, therefore, remand this case to the trial Court only on the point of determination of the ownership of the watercourse and its bed and its effect on the right of vicinage. The parties would be given a chance to lead evidence on this point and the trial Judge will record his finding on that limited aspect of the case and thereafter the record will be sent back to this Court for decision of the appeal. R & P to be sent back to the trial Court within 2 weeks and the parties are directed to appear before the Senior Civil Judge, Shandadpur on 18th of September, 1984. The Civil Judge is directed to record the evidence of the parties and his findings latest by December this year and then send back R & P to this Court for decision of this appeal.