1. ' WALI MUHAMMAD KHAN, J.---Mala appellant, through leave of the Court, has challenged the judgment dated 22-10-1989 passed by a learned Single Judge of the Lahore High Court, whereby the Revision Petition No,1102-D/89 filed by Hashim, respondent No,1 herein, was accepted, the judgment and decree of the appellate Court (Additional District Judge, Jhang) dated 7-6-1989 and that of the trial Court dated 19-1-1988 were set aside and the suit of the plaintiff/appellant challenging the order of the Sub-Divisional Canal Officer and Divisional Canal Officer, respondents 2 and 3, dated 22-4-1984 and 12-7-1984 allowing the Nikal to Hashim respondent 1, was dismissed.
2. The leave granting order is as follows:-- "Learned counsel while seeking leave to appeal has contended that the petitioner's side has been utilizing the Nikal for a very long time under unofficial arrangement when the same was confirmed, in a regular Warabandi in 1980. Few years later on the respondent's application the petitioner was deprived of the aforestated long-standing arrangement. He has also contended that the mere fact that the respondent side made a partition amongst themselves which suited their convenience was no ground for depriving the petitioner of a right regarding Nikal. The point regarding prohibition by the Martial Law Regulation against partition of land has also been pressed. These and other questions raised in this petition require examination. Leave to appeal, accordingly, is granted."
3. ' The facts of the case, stated in nutshell, are that the lands of the parties are being irrigated from the same outlet presently No,16637/L. Previously the irrigators had their mutual arrangement for the irrigation of their lands from the common outlet whereby the appellant had been enjoying the use of Nikal. For the first time the official Warabandi was prepared vide order dated 25-11-1980 (Exh.P1 on the file). Hashim respondent No,1 applied for amendment of the same on the ground that he has effected partition with his co-sharers in which specific area of 36 Kanals 14 Marlas out of Square No,22 has been allotted to him and that the land allotted to him being at the tail end, the irrigation water meant for this land is utilised in the channel and, in consequence, the amendment in the Warabandi is necessitated to provide him with due water for irrigation. The matter was investigated by the Sub-Divisional Canals Officer and he, vide his order dated 22-4-1984, accepted the prayer of respondent No,1. The appellant filed appeal against it to the Divisional Canal Officer which was dismissed vide order dated 12-7-1984. He filed a civil suit which was decreed by the learned Senior Civil Judge and the appeal filed against it also dismissed, but the High Court set aside both the judgments. Hence the instant appeal through leave of the Court.
4. ' We have heard Mr. Jari Ullah Khan, Advocate for the appellant; Mr. Shahid Hussain, Advocate, for respondent No,1; and have perused the record of the case.
5. ' The only ground agitated by the learned counsel for the appellant is that under subsection (2) of section 68 of Canal and Drainage Act, 1873 it was mandatory for the Sub-Divisional Canal Officer to give notice to the appellant before embarking upon an inquiry into the allegations of respondent No,1 and that in the absence of any such notice variation in the Warabandi could not be ordered.
6. The learned counsel for the respondent relying on the judgment of this Court in Muhammad Ziaul Haq v. Government of Punjab (1988 SCM R 44), however, submitted that the appellant had opportunity of hearing in the High Court below and that the impugned judgment does not suffer from any legal infirmity.
7. As discussed above, the controversy with regard to the amendment in the Warabandi was exclusively between the appellant, who had been using the Nikal since time immemorial and respondent No,1, who wanted to deprive him of the same on the allegation of having preferential right to it on account of the partition of the joint Khata and the land allotted to him being on the extreme tail end. The other irrigators were apparently not very much interested. It was, therefore, necessary for the Sub-Divisional Canal Officer to have issued personal notice to the appellant and satisfy himself about due service thereof before inquiry into the matter. There is nothing on the record to show that the statutory notice, as provided in subsection (2) of section 68 of the Canal and Drainage Act, 1873, was issued to the appellant and duly served upon him. In this connection the judgment of this Court in case Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore (PLD 1971 SC 61) is relevant. According to it, orders passed without issue of prior notice provided in the statute concerned are nullity in the eye of law.
8. ' Accordingly, the instant appeal is allowed, the impugned judgment of the High Court as well as those of the appellate Court and the trial Court are set aside and the matter is remitted to the Sub- Divisional Canal Officer concerned for decision afresh after issuing a notice to the appellant under section 68(2) of the Act ibid and affording him an opportunity of being heard.