This Regular Second Appeal arises from the judgment/decree dated the 4th of July, 1968, of the learned Additional District Judge, Lyallpur, whereby the appellants-defendants' appeal was dismissed.
2. The parties were getting water from the same `Mogah' for their lands situate in the same square.
In accordance with the old `Warabandi' dated. the 7th of July, 1965, the 'Nikal' was being shared by all of them pro rata. Saif-ur--Rehman appellant-defendant made an application. for a change in it whereupon the Divisional Canal Officer passed an order dated the 3rd of January, 1966, allowing him the 'Nikal' to the exclusion of all other owners in the particular square. The respondents aggrieved by it brought the present suit maintaining that there was no occasion to disturb the old `Warabandi', nor had anything new taken place to warrant it, nor was it justifiable on any plane.
They insisted that the 'Nikal' should have been given to all owners of the square as before and that the appellants-defendants could not be favoured for granting it on any ground whatsoever. They added that no notice was served upon them by the Divisional Canal Officer before passing the said order and hence the same was bad in law.
3. The suit was contested controverting the pleas raised in the plaint. The trial Court decreed it and the defendant's appeal failed. They have come up in the second appeal.
4. The main reasons for striking down the orders of the Canal Authorities by the Courts below were that the 'Warabandi' dated the 7th of July, 1965, could not have been modified by themselves only a few months thereafter, that is on the 3rd of January, 1966, without a decree under section 68(6) of the Canal and Drainage Act; and secondly, that the respondents-- plaintiffs had not been sufficiently served with the notice about the proposed change. Mr. Javed Buttar, Advocate for the appellants assailed these two points placing reliance upon Shahab-ud-Din v. Muhammad Sharif, et c. (PLD 1958 Lah.333), Barkat Ali, etc. v. Muhammad Yaqub (1981 CLC (Lah.) 1197), and Faqir Muhammad, etc. v. Ganda Singh etc. (AIR 1929 Lah. 260; 1929 I.C. Vol.116-311). His chief argument was that the case of Shahab-ud-Din was not properly read by the Courts below to appreciate that it did not lay a flat rule that an old `Warabandi' could be re-opened through a decree of the Court alone. He claimed that the later trend of the Authorities was that an old. `Warabandi' was re openable without a decree of the Court "whenever" a difference arose between the irrigators. As regards service of notice, he urged that quite a few of the respondents had actually appeared before the Canal Officers and that in any case satisfaction recorded in their order about the service of notice on all concerned claimed a presumption of truth and that it sufficed for all purposes to assume that the respondents had actually received the notice. He referred to Sardar Balwant Singh, etc. v. Sardarni Basant Kaur, etc. (AIR 1937 Lah. 448) in this behalf.
5. On the other hand, Mr. C.M. Latif Rawn, Advocate for the respondents supported the impugned judgment stating that the old `Warabandi' was not modifiable without a decree. He tried to distinguish the case of the Faqir Muhammad, etc. by relying upon Ghulam Nabi v. Ghulam Muhammad, etc. (PLD 1971 Lah. 371) wherein it was not followed. He asserted that there was no proper service of the notice either and that by virtue of the ruleenunciated in Munshi Khan, etc. v.
Sultan Ali Khan, etc. (PLD 1951 Lah. 166) and Bura Mal v. Nur Ilahi, etc. (AIR 1933 Lah. 76), the proceedings conducted by the Canal Authorities without service of such a notice were held invalid.
Besides, he maintained that the findings as to non-service being one of fact could not be assailed in second appeal.
6. Incidentally I happened to consider both these points in Civil Revision No. 1102/D of 1989. There too, the question of redistribution of 'Nikal' was raised. , An objection to reopening of the `Warabandi' for the purposes of granting 'Nikal' to the applicant concerned was repelled. Referring to commentary at page 139 of the Practical Treatise on the Canal and Drainage Act, 1873, by Engineer Sardar A.D. Nasir, First Edition, 1981, it was pointed out that redistribution of `Nikal' justified an application for fresh `Warabandi'. Various grounds like change of ownership, of share, division of holdings, long lead, partition of joint holdings, shifting of one's share, and redistribution of `Nikal' were shown to be sufficient to give rise to difference between the irrigators so as to call for modification in the `Warabandi'. The plaint in this case suggests that the respondents-plaintiffs were aggrieved only of the appellants' attempt to get `Nikal'. According to the view expressed above, they could ask for it with impunity as it was considered to be a ground of "Difference" contemplated by section 68(1) of the Act. The previous `Warabandi' could not be treated as an insurmountable hurdle in his way. If they could establish on facts that they were the last irrigators, they might insist for getting it exclusively. .
7. There was yet another aspect of the right to get `Nikal' and the same was also discussed in some detail in the judgment of the aforementioned revision petition. Again, relying upon the commentary at pages 133-134 of the Treatise cited above, I had taken a view there that the `Nikal' could not be claimed as of right and was left to the discretion of the Canal Officer who had to keep in view various factors for deciding its apportionment. The factors primarily were the area, time, nature of soil, configuration of land, etc. According to the author, ordinarily it was meant for the tail-ender of the `Mogah'. It appears that the Canal Authorities were influenced by the fact that the appellants were entitled to its as their land happened to be at the tail-end of the square. The earlier arrangement showing that it was shared by all the owners-in the square did not appear to be conformable to the ordinary rule of allocating it only to the tail-ender. This may have been the reason why a modification was made in it so as to grant it to the tail-ender. In any case, no owner had a vested right to ask for it and, therefore, the respondents-plaintiffs could not make it a cause for grievance to bring the suit.
8. The alleged non-service of notice, too, did not mean much in the speculiar context of this case.
Such a service was essential if the respondents were being denied a vested right. As already remarked, they had one of the type and could not agitate about it by bringing the suit. Assuming that the notice was essential, Rule 79-I at page 226 of the Treatise shows that the Canal Officer had to express satisfaction about its service by examining the process-- server or otherwise. In the case under consideration, he had expressed such satisfaction in the order and the same sufficed to hold that it had been quite adequately effected. I had taken a similar view also in the decision of the Revision referred to above.
9. A Single Judge is bound by his own decision on a point. Reference may be made to Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 S.C. (Pak.) 9) in this behalf. Consequently, it is difficult for me to hold differently. If I held earlier that `Warabandi' was reopenable or modifiable on the ground of asking `Nikal'; that there was no vested right to claim it through a suit; and that constructive notice about which the Canal Officer expressed his satisfaction in terms of Rule 79-I, was sufficient, I cannot hold contrarily in this case, nor could I discover any material to hold otherwise.
10. As a result, the .R.S.A. is accepted, the impugned judgment/decree are set aside and the respondents' suit is dismissed leaving the parties to bear their own costs.