This Revision Application is directed against the order of the Additional District Judge, Jacobabad dated 23-4-1975 allowing the appeal of res--pondents Nos. 1 to 6 from an order of the Senior Civil Judge, Jacobabad in 1st Class Suit No. 9/1975 rejecting the respondent's application for temporary injunction.
2. Briefly, the facts are that the applicant, Jamaluddin is Muqami Mirbahar (local fisherman) while the Respondents Nos. I to 6 are Zamindars who, at one time, were owners of several survey numbers of agricultural lands situated in Deh Malhir, Taluka Kandhkot, District Jacobabad. Several years ago, their lands as well as the adjacent State lands and other lands came under flood water and seewage water so much so that the waters, deep at places, formed into a large lake called "Ghoraghat Dhoro". Since several years, fishing rights in the said lake Ghoraghat Dhoro were being auctioned by the Fisheries Department and recently by the Peoples' District Council, Jacobabad (Respondents Nos. 8 and 9), who auctioned fishing rights in the said lake to the applicant Jamaluddin, for a period of 3 years commencing from the year 1973-74 under rule 18 of the West Pakistan Fisheries Rules, 1965. Sometimes early in February 1975, the respondent Zamindars protested to the Deputy Commissioner and Administrator, Peoples' District Council, Jacobabad alleging that the applicant, Jamaluddin was encroaching upon their lands. But, the Council paid no heed to their protest and, on the contrary, the Superintendent of Police, Jacobabad was directed to see that the applicant, Jamaluddin was not obstructed in the exercise of his fishing rights in the Ghoraghat Dhoro. The respondent Zamindars, there--fore, filed a suit against the Officers of the District Council and the applicant in the Court of the Senior Civil Judge, Jacobabad, in which they pleaded that as the lands were permanently unfit for cultivation due to their in--undation by flood water, they have been using the water as a Fish Farm by putting fish seeds in them and were also paying land revenue. They prayed for a declaration that the lands shown in Schedule 1 to the plaint may be declared as their property and that they are entitled to exclusive enjoyment without encroachment by any other person and for injunction to restrain the defendants from interfering in the water on their said lands and from dispos--sessing them from the said water. Along with the plaint, the respondent filed an application for temporary injunction under Order XXXIX, rules 1 and 2, C. P. C. Which was resisted by the applicant. The trial Court dismissed the said application on the ground that the respondents/plaintiffs had not made out a prima facie case of exclusive right of fishing in private water.
3. The respondents Zamindars filed an appeal to the Court of the Additional District Judge, Jacobabad. The appellate Court held that the' respondents were Kabuli owners of the survey numbers covered by the water and, as such in the capacity as owners, they had exclusive property in the water over their lands and that the said water was "private water" as defined in section 2 (g) of the West Pakistan Fisheries Ordinance, 1961. He also relied on Standing Order No. 7 Part II, to the effect that Government has no fishing rights over Dhands and Dhoras as are in Kabuli lands. He, there--fore, held that the respondents had made out a prima facie case and that if the injunction is not granted, they will suffer irreparable injury. He, there--fore, allowed the appeal of the respondents by the impugned order dated 23-4-1975 and granted the temporary injunction prayed for. The applicant has now filed this Revision Application against the said impugned order.
4. Mr. Giasuddin Baloch, learned counsel for the applicant assailed the impugned order on the ground, firstly, that the appellate Court mis--construed the definition of "Private Water" and failed to apply correctly the definition of "Public Water" in the respective Fisheries Ordinance, 1961 y and the Fisheries Rules, 1965. Secondly, that in allowing the appeal, the Appellate Court failed to hold in clear terms that the trial Judge improperly exercised the discretion vested in him.
5. As rightly submitted by Mr. A. Fateh Memon, the jurisdiction of the High Court in a Revision Application under section 115, C. P. C. Is limited and meant primarily for correcting errors made by subordinate Courts in the A exercise of jurisdiction, and not for correcting orders made in their dis-- cretion, unless the discretion is found to have been exercised fancifully or arbitrarily, as observed in Muhammad Umer Beg v. Sultan Muhammad Khan (PLD 1970 SC 149).
6. With regard to the first submission of Mr. Giasuddin Baloch, I am of the view that the learned District Judge erred in law in holding that the, water over the land of the respondents was their exclusive property as one time owners of subjacent survey numbers and that, therefore, it was "Private Water" as defined in section 2 (g) of the West Pakistan Fisheries Or--dinance, 1961. "Private Water" is defined therein as "water which is the exclusive property of any person, or in which any person has for the time being an exclusive right of fishery, whether as owner, lessee or in any other capacity". It is not in dispute that the water covered not only the lands of the respondents but also the adjacent lands belonging to the Government. As well as of the several other Khatedars. The whole sheet of water spreading over all these lands formed into one large common lake, which joined the lake 'Meehogi Dhoro'. Therefore, the water in the lake was not the exclusive property of the respondents. It is not the case of anyone that the lake in g question was exclusively situate within or was land locked by the survey numbers belonging to the respondents. Had that been so, the water in the lake would be their exclusive property and private water. Not being "Private Water", it becomes "Public Water", as defined in rule 2 (f ) of the West Pakistan Fisheries Rules, 1965, which defines "Public Water" as meaning "Water other than Private Water". In my opinion, therefore, the learned District Judge erred in applying a wrong principle of law and thereby mis--construed the definition of "Private Water" and "Public Water". Further his reliance on Standing Order No. 7, was misconceived as the same, besides being merely "instructions for guidance of the district ofii6ers" have no legal c force in view of subsequent legislation amending and consolidating the law of fisheries, contained in the Fisheries Ordinance, 1961 and the Fisheries Rules, 1965.
7. It is not necessary to consider the second submission of Mr. Giasuddin Baloch, because the Appellate Court has not reversed the order of the trial Court in the exercise of discretion, but on the ground only that the respondents had made out a prima facie case.
8. For the foregoing reasons, the impugned order dated 23-4-1975 is set aside and the Revision Application is allowed with costs.