' On 1-3-1975, Munshi and 54 others, petitioners filed suit for declaration to the effect that orders dated 8-8-1974 and 12-2-1975 passed by Divisional Canal Officer, Khushab Division and Superintendent Engineer That Circle, respondent No,3 were illegal, void, ineffective upon their rights and also on the rights of the other shareholders, against Province of Punjab and 23 others, respondents in the Court of Senior Civil Judge, Mianwali. Permanent injunction restraining respondents Nos.1 to 3 from demolishing the old water-course and making defendants Nos. 8 to 24 as share-holders was prayed as consequential relief. The suit was rsisted whereon following issues were framed: ' ISSUES: "(1) Whether the disputed order is illegal, void and inoperative for the reasons given in the plaint?
(2) Relief."
' The parties led their evidence. The trial Court dismissed the suit on 14-1-1978. The appeal filed by the petitioners against this judgment and decree was dismissed by the learned District Judge, Mianwali on 12-7-1978, hence this revision.
2. Learned counsel for the petitioners mainly submitted that Divisional Canal Officer, Khushab had passed the impugned order in favour of the private respondents without giving the petitioners opportunity of being heard and without issuing them any notice and if the order passed by the D.C.O. Is held to be without jurisdiction, the subsequent opportunity of being heard given to the petitioners before Superintending Engineer Canal could not validate the order passed by the D.C.O.
Learned counsel for the respondents has supported the impugned judgments and decrees.
3. I have considered the submissions made by the learned counsel for the parties with care. The question as to whether the notices were issued to the A petitioners or they were given opportunity of being heard is a question of fact. The Courts below have concurrently found that not only the notices were issued to the petitioners but the same were also served upon them. Learned counsel for the petitioners has not been able to point out any misreading/non-reading of evidence by the Courts below. In his judgment, the trial Court has stated that; "The copy of the impugned order produced by the plaintiffs clearly shows that the plaintiffs were served with notices and were provided the chance of hearing. Even the plaintiff, Munshi has admitted in his cross-examination that against the impugned order they had filed the appeal before the Superintending Engineer, Defendant No,2, who after hearing them, dismissed their appeal. As such, the plaintiffs cannot claim that they were either not served or not provided with a chance of hearing. The learned counsel for the plaintiffs contends that there is no proof on the record that the plaintiffs were ever served with any notice at the time the order was passed by the D.C.O. Defendant No,
3. But this argument has got no force for the reasons, firstly that as already stated in the above facts they were served with such notice and secondly that even if they were not served by D.C.O. Canal defendant No,3, still the impugned orders are not illegal, null and void for the reasons that the impugned order was passed under section 20 of the Canal and Drainage Act and by that provision, it is only the order of S.E. Which can effectively determine the rights of irrigation under these proceedings and the order of D.C.O. Is in fact a simple suggestion to the S.E."
Learned counsel has not been able to controvert the aforesaid observation made by the trial Court.
Furthermore, onus to prove issue No,1 was on the petitioners. They did not care to place on record and prove the proceedings of the D.C.O. With regard to the issuance of notice and service thereof on the petitioners. This being the position, exception can be taken to the findings arrived at by the Courts below with report to the service of notice issued by the D.C.O.
' Pursuant to the above discussion, there being no merit, the revision is dismissed, leaving the parties to bear their own costs.