The facts leading up to this second appeal have a chequered history end may be stated in some detail. A declaratory suit was filed by the respondents against the appellants challenging the validity of an order dated the 27th of October 1961, of the Superintending Canal Officer passed on the report dated the 18th of October 1961, of the Divisional Canal Officer on ,the application dated the 4th of July 1959, made by the shareholders of outlet No. R. D. 32426-R for making the size of the outlet proportionate -to the area of its C.C.-A. The challenge to the said order was on the ground that the same had been passed without compliance of the provisions of section 20 of the Canal and Drainage Act, 1873 (hereinafter referred to as the Act) and without notice to the parties interested. Accepting the objections of the respondents, the trial Court decreed the suit and on appeal the decree of the trial Court was affirmed. However, while affirming the decree, the learned Additional District Judge proceeded to uphold the contentions of the appellants that the order passed by the Divisional Canal Officer in 1915 altering the irrigation of the land (square No. 31) of the appellants from R. D. 36314/R to R. D. 32426-R was void as the said order of the Divisional Canal Officer had neither been confirmed by the Superintending Canal Officer nor has the same been passed after complying with the provisions of law in that regard. The appellants again moved the Divisional Canal Officer for redress and the said authority passed a fresh order on the 15th of October 1963, after issuing notices etc., to the parties and after a detailed enquiry on the spot, holding that the order made in 1915 to the detriment of the appellants being an invalid order was not effective and operative and that the application made by them earlier on the 12th of February 1960, for transfer of their square No. 31 from outlet No. R. D. 32426-R to outlet No. R. D. 36314-R on the ground that square No. 31 was on high level and could not be irrigated from R. D. 32426-R had been filed under a misapprehension of fact as is evident from their objections filed before the Superintending Canal Officer against the Divisional Canal Officer's order (dated the 10th of October 1960) of rejection. It was pointed out that the Superintending Canal Officer had rejected the objections of the appellants on the 27th of June 1961, without having referred to the invalidity and ineffectiveness of the order of 1915. The Divisional Canal Officer had further held that as a matter of fact despite the invalidity and ineffectiveness of the order of 1915 the appellants have been irrigating their square No. 31 during all this period both from R. D. 36314-R and R. D. 32426-R and now when the invalidity of the 1915 order has been .Established, the appellants' prayer for permitting them to irrigate their land from R. D. 36314-R be allowed. The Superintending Canal Officer, however, has passed the following order (Exh. P. 12) thereon, which has been impugned in the present suit:------ "The question of invoking provisions of section 20 in this case does not arise as it does not involve any change in Chakbandi. The area is --already on outlet RD-36314/R."
Both these orders of 15th October 1963, of the Divisional Canal Officer --and order dated the 31st of January 1964, of the Superintending Canal Officer were challenged by Fazal Muhammad, one of the respondents, by way of Writ Petition No. 313 of 1964. The learned Judges after holding that "the order of the Divisional Canal Officer was made without complying with section 20 of the Canal and Drainage Act and the order was never approved by the Superintending Canal Officer" and "in the circumstances the position taken up by the Superintending Canal Officer --is technically correct and cannot be said to be legally untenable" and, further observing that "we may have admitted this petition for consideration of the effect of square No. 31 having drawn water from outlet R. D.
32426-R since 191 as was admitted by the respondents too" proceeded to dismiss. The writ petition in l1mine on the ground that there is a right of suit and as--a matter of fact a civil suit ;(the present suit) has actually been filed by Ata Muhammad, brother of the petitioner. The suit filed by Ata Muhammad,., and others has been decreed by the trial Court and the appeal of the --appellants has also failed before the Additional District Judge.
2. In this second appeal it has been argued on behalf of the appellants --that the findings of the learned Additional District Judge in the previous judgment (Exh. P. 10) on the question of invalidity of the order of 1915 of the Divisional Canal Officer transferring the land of the appellants from outlet No. R. D. 36314-R to outlet No. R. D. 32426-R having been, passed in violation of the relevant provisions of law and having also not: been confirmed by the Superintending Canal Officer is res judicata and the Courts below have erred in disregarding that judgment. It is further-- argued that the Additional District Judge has misinterpreted the observation of their Lordships in the writ petition inter partes in holding that the said observation pertains to invalidity of the subsequent orders and not of the 1915 orders. It has also been argued that the order of the Superintending Canal Officer is an order passed in confirmation proceedings under section 20, of the Act and it has been wrongly held to the contrary.
3. Learned counsel for the respondents has rightly argued that because the appeal in the previous suit had resulted in favour of the present respondents and they could not have appealed against that judgment, any finding given therein adverse to them is in no manner res iudicata and is not binding on them. Learned counsel for the appellants has not been able to show, in the circumstances of the case, that the finding, if any, in the said judgment in favour of the appellants are covered by the provisions of section 11 of the Code of Civil Procedure. I, therefore, hold that because the appellants had failed in their appeal before the Additional District judge and the result was in favour of the respondents the finding of the Additional District Judge on the question of validity or otherwise of the 1915 orders of the Canal authorities it not matter res judicata between the parties and as such not binding on the respondents in the subsequent litigation. A perusal of the High Court Judgment shows that the observa--petition as to invalidity because of non-.Compliance with the provisions of section 30 of the Act pertains to 1915 orders and not any subsequent orders.. Learned counsel for the respondents does not join issue on this point but argues that the impugned orders have also not been held valid. The---argument is not without force. When the learned Judges themselves felt like considering the effect of square No. 31 having drawn water from outlet R. D. 32426-R since 1915 and the admission of the appellants in this respect, cannot be successfully contended that the matter in issue namely the position taken up by the Superintending Canal Officer though described as `technically correct and cannot be said to be legally untenable' has been heard and finally decided so as to preclude the civil Court from arriving at a finding in that regard untrammelled by the observation in the writ petition or the remarks of the Additional District Judge in the previous litigation On this view of the matter, I propose to deal with the legal aspects of the case before me.
4. The learned lower Appellate Court has held that since the order passed by the Superintending Canal Officer on the 31st of January 1964, is not an order of confirmation, rather the Superintending Canal Officer has considered the entire proceedings before the Divisional Canal Officer to be unnecessary because according to him the case did not fall under section 20, there are no orders confirming or modifying the order of the Divisional Canal Officer in the eye of law. The plain language in which the impugned order is couched does not yield to the construction (contrary to the above finding of the lower appellate Court) attempted to be placed on it by counsel for the appellants. In the previous litigation, the Divisional Canal Officer as also the Superintending Canal Officer had taken the position that the order of 1915 being invalid and having never been implemented, the order confining the appellants to outlet R. D. 36314-R had not been passed by way of transferring the area of the appellants from outlet R. D. 32426-R to outlet R. D. 36314-R. The order, according to them, had been passed to put the record straight which administrative act did not require any notice to the respondents or other persons interested in outlet R. D. 36314-R. This view of the Department was not accepted by the Courts and it was held that such an order could only have been passed under section 20 of the Act and as the same had been passed without recourse to the provisions of section 20 and without notice to the persons interested, it was void and bad in law.
5. In the present suit, the prayer of the appellants, owners of square No. 31, before the Canal authorities was for transfer of their area from outlet No. R. D. 32426-R to outlet No. 36314-R on Gugiana Distributory. Divisional Canal Officer has traced the history of the case and recorded the following conclusion:---- " . It is decided that square No. 31 will remain in the chakbandi of outlet R. D. 36314-R, Gugiana Disty.
And this may be given effect in the interest of irrigation under section 20 of the Canal and Drainage Act VIII of 1873 subject to the confirmation of Superintend--ing Canal Officer, lower Chenab Canal, West Circle, Lyallpur."
For the purpose of disposal of the application, it was necessary for the Divisional Canal Officer to decide (i) whether the supply should be given at all ; (ii) whether the supply was, being given from outlet No. R. D. 32426-R or outlet No. 36314-R or both and (iii) whether it should be given in the manner asked for by the applicants from outlet No. R. D. 36314-R discontinuing their supply from outiets No. R. D, 32426-R. For that purpose, the Divisional Canal Officer was bound to ascertain the supply given to the various persons interested in the outlet R. D. 36314-R and to further fix what share should be given to the applicants and in what manner the other interested persons were to be compensated because the applicants, even if found to be irrigating their land from outlet. No. R.
D. 36314-R in papers of the Department, were admittedly not irrigating their land from the said outlet under any valid order. They were enjoying the supply sometime from both the outlets and at the other from outlet No. R. D. 32426-R only. The Divisional Canal Officer has decided that the applicants ought to have water from outlet No. R. D. 36314-R. The order is, therefore an order under section 2 and it required confirmation by the Superintending Canal Officer and the provisions of the said section. Kadir Bakhsh v. Bhagat Ram others (71 P R 1888refers. It is also not denied that the Canal authorities have no power to confer right of irrigation without recourse to section 20 or section 23 of the Act (see Kania Lal and others v. Narain Singh and others (50 1 C 299). By his order dated the 15th of October 1963, partly reproduced above, the Divisional Canal Officer has forwarded the case for confirmation tol the Superintending Canal Officer, who has unfortunately again taken the view that it was a question of rectification of the record of the Department and not of taking any action under section 20. It is admitted on all hands that the order of the Divisional Canal Officer by itself has no legal effect, because it is subject to confirmation or modification by the Superintending Canal Officer, whose order is binding as per subsection (2) of section 2 of the Act.
An order of refusal to confirm is also covered by subsection (2) of the section and such an order is binding on the applicant and also on the person responsible for the maintenance of the said watercourse, for the added reason that such an order is clothed with finality by virtue of rule 81 of the rules framed under section 55 of the Act. Zulffqar A.I and another v. Superintending Engineer, Multan and another (PLD 1957 Lah. 703) expresses the same view. The result is that by virtue of the provisions of section 20, the Divisional Canal Officer's order having not been confirmed, it has remained inoperative and ineffective and the declaration granted in the suit by the Court below is not shown to be infirm in this regard.
6. For the reasons above, there is no merit in this appeal, which is hereby dismissed. However, the parties are left to bear their own costs in the peculiar circumstances of the case.