' This Regular Second Appeal has been brought from a Judgment, dated 4th January, 1969 of the learned District Judge, Sargodha, whereby he dismissed an appeal filed against a judgment and decree,. dated 30-10-1968 of Mr. Muhammad Zaman Khan, Civil Judge, Sargodha.
2. Briefly the facts of the case are that Muhammad Sadiq respondent instituted a suit on 1-7-1967 against the appellants in the civil Court at Sargodha for the cancellation of amended Warabandi, dated 13-6-1967 passed by the Divisional Canal Officer Rasool Division Lower Jhelum Canal Circle appertaining to Khal Moga No.62394/L Rajbah Rato Kala lower Jhelum Canal situated in Chak No.10 Main Line Tehsil Bhalwal District Sargodha, on the ground of illegality and having the effect of depriving the respondent of his right to have Nikal and asked for a permanent injunction restraining the appellants from interfering with his right to get Nikal in accordance with the earlier Warabandi.
3. According to the averments in the plaint, the respondent was holder of 12 Acres of land at the said Moga in Chak No.10 Main Line Tehsil Bhalwal District Sargodha out of which 3 Acres the respondent had from Muhammad Zaman, a displaced person from Mangla Dam as a lessee.
According to the Warabandi fixed on 4-2-1963 the respondent used to get Nikal on the entitlement that his land was situated towards the end of the Khal Moga. The Warabandi was changed on 13- 6-1967 by the Divisional Canal Officer and the Nikal which the respondent used to get was allowed to the appellants. It was alleged that before passing the impugned order no legal notice was given to the respondent. The Warabandi fixed on 4-2-1963 had become final since that had not been challenged in the civil Court, so the Divisional Canal Officer was not competent to change that and give the Nikal to the appellants. At the time of sanctioning of the earlier Warabandi, dated 4-2- 1963, the appellants were present before the then Divisional Canal Officer when he was made entitled to Nikal. The respondent in his plaint maintained that the order, dated 13-6-1967 was illegal, void and without jurisdiction.
4. The suit was resisted by the appellants who practically denied all the allegations and asserted that the order as passed was perfectly a legal one calling for no interference, raising the preliminary objections that all the sharers in the outlet were not made as defendants in the suit, the provisions of Order I, rule 8, C.P.C. did not apply to the case. The respondent had no locus standi to institute the suit.
5. On the pleadings of the parties the learned Civil Judge framed the following issues:-
(1) Whether all the share-holders in the outlet are necessary parties, and must be impleaded as defendants in their own names, and the suit cannot proceed under Order I, rule 8, C.P.C. ? If so, with what effects ? O.P.D.
(2) Whether the impugned order, dated 13-6-1967 passed by the D.C.O., Rasul Division is illegal, void and unjust for the reasons stated in para. No. 3 of the plaint? O.P.P.
(3) Whether the plaintiff has got no locus standi to sue? O.P.D.
(4) Relief.
' The learned Civil Judge as to Issue No. 1 observed that the number of the share-holders in the disputed outlet was quite large. The respondent had applied for permission to sue the appellants in their personal as well as representative capacity. The shareholders were served through proclamation and the suit was allowed to proceed as applied for by the respondent. None else appeared, therefore, ex parte proceedings were ordered against them. According to the learned Civil Judge that was a fit case for the application of Order I, rule 8, C.P.C., so there was no necessity of suing all the share-holders personally. The issue was decided in favour of the respondent.
' Under issues Nos. 2 and 3 the learned trial Judge observed hat according to the law the Divisional Canal Officer was only competent o pass an order of Warabandi if there was a dispute before him among he shareholders concerning the use and distribution of water and resides that the proceedings were to be initiated on a written application made in that behalf. Since no application had been made as regards either the change or allotment of Nikal, therefore, the Divisional Canal Officer had no power to reopen the matter. The learned trial Judge was of the opinion that in spite of the allotment of the land to Muhammad Zaman no change could occur because that land still remained with the respondent and an application was moved on behalf of Muhammad Zaman that he did not want any change as to his Warabandi and his land was not to be bifurcated from that of the respondent. The Divisional Canal Officer himself could not bifurcate the area and directly affect the respondent's right to get the Nikal as fixed by the previous order. He opined that in order to help the appellants to get the Nikal the Divisional Canal Officer proceeded to bifurcate the area of the respondent and Muhammad Zaman despite their unwillingness. The Divisional Canal Officer had no authority to reopen the matter when there was no dispute in that regard and no application was made to him by any interested person, so the act of the Divisional Canal Officer was without jurisdiction and the order of the Divisional Canal Officer was liable to be set aside. He held contrary to the assertion of the respondent that the shareholders were duly served before the impugned order was passed. The respondent being an owner in the disputed outlet was an aggrieved person, therefore, he had the locus standi to institute the suit. Both the issues were decided in favour of the respondent and against the appellants. Resultantly the learned Civil Judge decreed the suit without costs vide his judgment and decree, dated 30-10-1968.
6. The appellants being aggrieved filed an appeal from the decree so passed. The learned District Judge observed that if the Khata of Muhammad Zaman was to be separated from Muhammad Sadiq respondent then there could be a necessity for a new Warabandi as a separate water supply was to be ordered for Muhammad Zaman in the Moga affecting the entitlement to Nikal then neither the respondent nor Muhammad Zaman would have got the Nikal. In case the Khata remained in tact as that was, no change was necessary. Section 68 of the Canal and Drainage Act provided for a new Warabandi only in case of a dispute arising between two or more share- holders. In the case in hand the dispute could have arisen only between the respondent and Muhammad Zaman and not between Muhammad Sadiq respondent and Sardar Khan etc. appellants. Their dispute had evidently been settled long ago in 1963. In an answer to the submission of the learned counsel for the appellants before the learned District Judge that an application for the separation of the Khata was made by the WAPDA Authorities through whom the allotment had been secured by Muhammad Zaman and who represented the interest of Muhammad Zaman in the Khata, the learned District Judge observed that Nadir Khan Patwari who had appeared as a representative of WAPDA before the Divisional Canal Officer had stated that Khata of Muhammad Zaman should not have been separated from Muhammad Sadiq respondent. The learned District Judge affirmed the judgment and decree passed by the learned Civil Judge and dismissed the appeal with costs vide his judgment dated 4-1-1969.
7. The learned counsel for the appellants has contended that the suit as brought suffered from non-joinder as to the necessary parties. The Divisional Canal Officer was not made a party nor the Government of the Punjab and the WAPDA. Reliance has been placed on Fateh Muhammad and others v. Muhammad Bashir and others 1968 SCM R 1220 (It will be discussed in the later part of the judgment). Both the Courts below have taken to a wrong approach in deciding the case. An appeal had been provided which had not been availed of so the jurisdiction of the civil Court could not be invoked. The civil Court was concerned with the legal rights of the parties and not the manner in which the water was to be distributed. The reliance in this behalf has been placed on Badar Din v.
Bahadur Ali and others PLD 1968 Lah. 573 in which it has been held that the order of the Divisional Canal Officer fixing the panel of Warabandi can be declared as ultra vires and ineffective by a civil Court but it cannot decide as to who is entitled to the Nikal especially when the oral evidence led by the parties has been discarded. He has further submitted that there was no joint Khata between the respondent and Muhammad Zaman. Muhammad Sadiq is entitled to water for one hour and 33 minutes so far as his land is concerned, for giving him the Nikal he must have more than one hour and 33 minutes. The appellants are entitled to two hours and 7 minutes. The new Warabandi was taken because the WAPDA had applied for it because some land was given to the WAPDA by the Government for the settlement of the oustees from Mangla Dam. Under Order I, rule 8, C.P.C.
Muhammad Zeman was represented by the appellants. Ataullah P.W.2 produced by the respondent had stated that he had taken the entire area from Muhammad Zaman on lease. The operation of the decree of the learned Civil Judge affirmed in appeal was suspended on 27-3-1969 and since then the same Warabandi is being acted upon and now to disturb that at this stage will not be conducive to justice.
8. The learned counsel for the respondent has in reply submitted that as to the non-joinder of the Government of the Punjab and WAPDA the objection has been raised only in arguments, not in the memorandum of appeal and at no earlier stage. On behalf of the Wapda a Patwari A appeared.
The Government of the Punjab had nothing to do with the case. The Divisional Canal Officer was not a necessary party. Anyhow no objection was taken at the proper stage otherwise the defect would have been removed. A new Warabandi takes its rise as a result of a dispute between the rightholders.. There is no such a dispute. There is no objection from Ataullah that he was not statisfied with the then existing Warabandi. A right of appeal was created by way of an amendment, when the suit was filed there was no right of appeal. (In view of this submission the learned counsel for the appellants has dropped the objection in this respect.)
' There is no proof that the impugned Warabandi is in de .facto operation. It is not so. Assuming it otherwise the stay order issued by this Court does not per se create a right.
9. As to the objection regarding the non-joinder of necessary party the reply made by the learned counsel for the respondent is most apt.
'The learned counsel for the appellants in this regard stands refuted by his own reliance. In the case of Fateh Muhammad (supra) the learned Supreme Court has observed:- "It may be pointed out at this stage that we have heard the appeal on merits notwithstanding the fact that the Divisional Canal Officer, who made the impugned order, was a necessary party to the suit as we find that no objection on this ground was taken either in the Courts below or in the petition for special leave or in the concise statement. In this view of the matter the Court is, we think, entitled under the provisions of Order I, rule 9 of the Code of Civil Procedure, to 'deal with the matter in controversy so far as regards the rights and interests of the parties actually before it', notwithstanding the non-joinder of a necessary party. Apart from this we find that a practice has grown up in this Province under which the Divisional Canal Officer making an impugned order relating to a Warabandi is not joined as a party in a suit filed to challenge such an order."
' The learned counsel for the appellants has raised this objection only in this Court while arguing his case. It is too late for him to raise the objection. The learned counsel has not been able to point out that in which capacity the Government of the Punjab and WAPDA were the necessary parties. The land had been allotted by the Government through WAPDA to Muhammad Zaman and at the relevant time Muhammad Zaman was the holder of the land out of 12 Acres of land initially possessed by the respondent. No doubt according to the import of the decision of the learned Supreme Court a Divisional Canal Officer is to be joined as a party but in the absence of any objection at the proper stage no weight can be given to the objection now raised. Nothing has been relied upon to show that the WAPDA ever applied for the new Warabandi. Even if it is accepted that Muhammad Zaman is represented by the appellants under Order I, rule 8, C.P.C. this does not advance the case of the appellants because as has been observed by the Courts below Muhammad Zaman was never a disputant nor Ataullah P.W.2 if it is also accepted that. he was holding the entire land allotted to Muhammad Zaman on lease as has been earlier alluded to by the learned counsel for the appellants. The argument of the learned counsel for the appellants that the civil Court is concerned with the legal rights of the parties and not the manner in which the water is to be distributed, does not hold good since the learned trial Court has not adjudicated upon the manner as to the distribution of the water but has held that the new Warabandi had not been brought into existence in accordance with section 68 of the Canal and Drainage Act, 1873 as there was no application in writing to the Divisional Canal Officer stating the matter in dispute nor there was any dispute among the share-holders concerning the use and distribution of water before the Divisional Canal Officer so as to make him competent to proceed under section 68 of the aforesaid Act. There is a specific finding of the learned trial Court that no application appertaining to any dispute was ever made. If this is the position the n according to the provisions of section 68 of the Canal and Drainage Act which is quoted below:- "(1) Whenever a difference arises between two or more persona; with regard to the distribution, use, or maintenance of the watercourse supplied with water from that outlet, or deposit of soil from water course clearance, or mutual rights and liabilities in that regard, any such person may apply in writing to the Sub-Divisional Canal Officer stating the matter in dispute. The Sub-Divisional Canal Officer shall thereupon proceed in the matter as laid down hereafter:-
(2) Such Officer shall give notice to all persons interested and liable to be affected that on a day to be named in such notice he will proceed to inquire into the said matter and after such inquiry, he shall pass his order thereon unless he transfers (as he is hereby empowered to do) the matter to the Collector, who shall thereupon inquire into and pass his order on the said matter.
(3)
(4)
(5)
(a)
(b)
(6) ..................................................................
'It has been rightly held by the learned trial Court that the Divisional Canal Officer had no power to reopen the matter. In the circumstances, it has been rightly found by the learned trial Court and upheld by the lower appellate Court that the position obtaining remained the same after the allotment of some land to Muhammad Zaman. Substantially there took place neither any dispute nor any change because the land remained within the possession of the respondent and Muhammad Zaman had stated that he desired no change in the Warabandi nor cherished for separation of his land from that of the respondent. The persons who could dispute remained in agreement. It has rightly been observed by both the Courts below that in the circumstances the Divisional Canal Officer had no authority to devise new Warabandi by bifurcating the land held by the respondent and Muhammad Zaman when there was no difference between them. Since the Divisional Canal Officer had acted of his own to separate the land of Muhammad Zaman from that of the respondent obviously to help the appellants to get the Nikal, his fixation of a new Warabandi having no other foundation cannot be regarded as within the contemplation of section 68 of the Act, as such, is without legal authority and jurisdiction. The Statute itself recognises the jurisdiction of a civil Court to set aside an order passed by a Divisional Canal Officer if that is not in accordance with law, when it says that any order passed under subsection(2) of section 68 of the Canal and Drainage Act, shall thereafter remains in force until it is set aside by a decree of a civil Court. Both the Courts below have arrived at a correct conclusion, therefore, no interference is called for in this Regular Second Appeal. The submission of the learned counsel for the appellants that after the suspension of the decree the new Warabandi which has been acted upon should not be disturbed has no footing in view of per submission of the learned counsel for the respondent that it per se creates no right. This appeal is dismissed being without any substance, with costs.