1. ' ANWARUL HAQ, J.-This petition is directed against the judgment of the Lahore High Court dated the 27th of January 1975, dismissing the second appeal filed by the petitioner Rao Mehrban Khan to challenge the dismissed of his suit by the trial Court. His first appeal had earlier been dismissed by the Additional District Judge, Montgomery, by his order dated the 22nd April 1966.
2. ' The petitioner had filed the suit to challenge the legality of the order made by the Divisional Caaal Officer, Montgomery, on the 7th of September 1964, allowing the respondent Shah Muhammad to take canal water from the watercourse passing through Killa Nos. 5, 6 and 15 of Square No, 88, owned by the petitioner. It was averred in the plaint that the order was bad for the reason that it had been made in disregard of the provisions contained in sections 20 to 28 of the Canal and Drainage Act, 1873.
3. ' The suit was contested on the grounds of lack of jurisdiction and bar of limitation. It was also contended that the watercourse had been sanctioned before 1931, but it had been demolished by the plaintiff after the Divisional Canal Officer had made Warabandi order on the 12th of March 1964, and it was for this reason that an application had to be made to the said officer for the restoration of the watercourse.
4. ' The learned trial Judge decided the issues of jurisdiction and limitation in favour of the plaintiff, but he held that the Khal in dispute was a sanctioned Khal prior to the Warabandi order made by the Divisional Canal Officer on the 12th of March 1964, and this officer was competent, by his impugned order, to direct its restoration under the Canal and Drainage Act. On this view of the matter he dismissed the suit.
5. These findings of the trial Court were endorsed, in first appeal, by the learned Additional District Judge of Sahiwal, who also placed reliance upon a plan (Exh. D-1) prepared by the Irrigation Department showing the existence of this Khal at least since 1958. The learned Judge in the High Court has observed that the matter is concluded by a finding of fact, namely, that the watercourse in dispute was a pre-existing watercourse, and the case did not involve the construction of a new watercourse. The High Court has also taken note of the fact that the petitioner had not challenged the Warabandi order passed by the Divisional Canal Officer in March 1964, which clearly mentions the existence of this sanctioned Khal.
6. ' Leave to appeal is sought by the plaintiff on the following grounds :-
(1) That the order made by the High Court in second appeal is a nullity in the eye of law for the reason that the petitioner was not heard even though he was present at the time the case was called ; and
(2) that the finding of fact regarding the previous existence of the Khal in dispute as a sanctioned watercourse, is vitiated for two reasons :-
(i) That it is based on inadmissible evidence, namely, Irrigation Department's plan (Exh. D-1) which was not proved at the trial in accordance with law ; and
(ii) that it was arrived at by the illegal exclusion of the evidence of the Canal Zilladar, who had been examined at the preliminary stage of deposing of the petitioner's application for a temporary injunction.
7. ' On the first point, learned counsel has drawn our attention to an affidavit placed on the present record by the petitioner to the effect that at the time the case was called, the petitioner's counsel was arguing a part heard case before a Special Bench presided over by the learned Chief Justice of the High Court, and this fact was conveyed by the petitioner to the learned Judge hearing his appeal ; However, the case was called again and the same submission was made by the petitioner, but the learned Judge did not allow time for the petitioner's counsel to appear after finishing his arguments before the Special Bench. It is submitted by Mr. Sbahzad Jahangir that after concluding his submissions before the Special Bench, he himself appeared before his Lordship and requested for a hearing on merits, but the learned Judge did not agree as he had already disposed of the case.
8. ' We find that in the opening paragraph of the judgment of the High Court, it is stated as under :- "No one appeared for the appellant in this case despite of the fact that the case was called twice at different occasions. Since while waiting for the learned counsel I had gone through the whole record t is not necessary to dismiss this appeal in default. I, therefore, proceed to dispose it of on merits."
9. ' As all official and judicial acts are presumed to have been properly performed, we regret we are not in a position to place any reliance on the affidavit now submitted by the petitioner to the effect that he had requested the learned Judge to wait for his counsel, who was busy before a Special Bench in the same High Court. We are not prepared to embark on any enquiry into the assertions now made by the petitioner in this behalf.
10. Turning now to the merits of the case, we find that on the finding of fact recorded by the trial Court, and upheld in first appeal by the learned Additional District Judge, this would not be a case of construction of new watercourse, requiring the formalities prescribed in sections 21 to 28 of the Canal and Drainage Act. The question, therefore, is whether the finding of fact as to the previous existence of the watercourse in dispute stands vitiated for the reasons urged by the learned counsel for the petitioner.
11. ' The document Exh. D-1, namely, an irrigation plan prepared by the Department concerned, was admitted in evidence by the trial Court, and there is no material on the record to show that the document was not admitted in accordance with law. Learned counsel has not been able to show us the order of the trial Court admitting this document, or any objection which had been raised on behalf of the petitioner at the time of such admission. In the circumstances, we are unable to uphold the contention that the document was inadmissible.
12. ' As regards the contention that the evidence of the Zilladar had not been taken into account, suffice it to say, that the Zilladar was not examined as a regular witness for the decision of the issues framed in the suit. He was examined at a preliminary stage for the disposal of the interim application submitted by the petitioner. A copy of his evidence has not been placed on the present record, nor is there any material to show that it was pressed into service before the trial Court or the learned Additional District Judge. However, it has been read out at the bar and we find that it does not negative the defendant's case.
13. The learned Additional District Judge has referred, at some length, to the entire evidence produced by the parties, and we see no reason to hold that the finding of fact recorded by him is vitiated in any manner. The learned Judge in the High Court was, therefore, right in accepting that finding, and deciding the case on that basis.
14. ' For the foregoing reasons the petition fails and is hereby dismissed,