This revision petition is directed against the judgments and decrees of the two Courts below, whereby the suit of the plaintiff-petitioners was returned to them under Order 7, rule 10 for presentation before proper forum, vide trial Court judgment and decree dated 25-2-1990, where against appeal filed before the learned appellate Court was dismissed by the learned Additional District Judge, Bannu dated 8-6-1991.
2. This case has got a chequered history. The petitioners are landowners of village Ghoriwala and village Khojari Babar, Tehsil and District, Bannu, where they have got sufficient landed property, which was used to be irrigated from Kachkot Canal through Vial Murda and Zambela. However, Vial Murda finishes after Tama Malang and from this finishing point the petitioners wanted to divert the water of Vial Murda to Vial Zambela but the respondents did not allow the petitioners to this diversion and on this dispute the, parties are litigating for more than 20 years.
3. Initially the petitioners had instituted a suit in the Court of Collector, Bannu under section 43(2)
(a) of Minor Canal Act requesting therein for a decree for entitlement of putting their share of water for Vial Murda into Vial Zambela so that they could use their water so put into Vial Zambela for the irrigation of their lands -in village Ghoriwala. The suit was contested by the respondents and the learned Collector, Banfu after recording evidence of the parties and hearing them dismissed the suit of the petitioners where against the appeal filed before the Additional Commissioner was also dismissed. Then the petitioners preferred a Revision Petition to the Member, Board of Revenue who vide his order dated 11-5-1972 accepted the revision and remanded the case to the Collector, Bannu with express directions that according to Kifayat and Riwajat-e-Abpashi three main issues enumerated in the original plaint of the petitioners be decided. After remand of the case the Collector seized of the matter and vide his order dated 26-11-1975 again dismissed the suit of the petitioners. Against this order an appeal was filed before Additional Commissioner, D.I.Khan, who vide his order 7-10-1979 accepted the appeal and remanded the case back to the Collector, Bannu on the grounds that the order of the Collector dated 26-11-1975 was very brief order and he did not give due consideration to the observations made by the learned Member, Board of Revenue in his order dated 11-5-1972 and that the relief claimed by the petitioners regarding three issues mentioned in the original suit were not separately and specifically dealt with before passing his final order. On receiving the case back by the learned Collector, Bannu, he inspected the site, made an inquiry, heard the parties and perused the relevant record and Kafiyat Riwajat-e-Abpashi and vide his order dated 23-4-1983 again dismissed the suit of the petitioners. This order was challenged before the learned Additional Commissioner, D.I. Khan in appeal, who vide his 'order dated 25-8-1983 by upholding the order of the learned Collector, Bannu dismissed the appeal. A revision petition was filed against this order of the Additional Commissioner, D.I..Khan in the Court of Member, Board of Revenue, who vide his order dated 30-8-1984 while concurring with the orders of the learned lower Courts, dismissed the revision petition.
4. The plaintiff-petitioners being unsuccessful in their efforts before the Statutory forums approached the Civil Court by filing a civil suit in the Court of Senior Civil Judge, Bannu on 26-11- 1984, for the redress by praying therein that they were entitled to the right of use of the Water Course Zambela and also challenged the orders of the forums concerned by alleging them to be illegal and ineffective upon their rights. The suit was resisted by the defendants and from the pleadings of the parties the following issue were framed:--- (1)Whether this Court lacks the jurisdiction to entertain the present suit?
(2)Whether the suit is maintainable in its present form?
(3)Whether the suit is within time?
(4)Whether the matter in question is res judicata?
(5)Whether the suit is bad on account of non joinder of necessary parties?
(6)Whether the plaintiffs are entitled to irrigate their lands from the water of Vial Murda by flowing the same water through Vial Zambela and the Settlement Officer order is ineffective upon the rights of the plaintiffs and similarly the orders and judgments of Collector date 23-4-1983, that of Additional Commissioner dated 25-8-1983 and the orders of .The M.B.R. Dated 30-8-1984 are inoperative, illegal and void upon the rights of the plaintiffs?
(7) In case of answering Issue No. 6 above whether the plaintiffs are entitled to the decree of permanent injunction, as prayed for?
(8) Relief.
After examining some of the P.Ws. a request was made for disposal of the case on the issue of jurisdiction which was not acceded to at that time and it was held that it would be decided at the time of final adjudication after recording of the evidence by holding that in the instant case the plea of jurisdiction is a mixed question of fact and law. The appeal and revision against which failed and ultimately the learned trial Court after recording of the evidence gave finding on the said issue i.e. The issue of jurisdiction by holding that the Civil Court has got no jurisdiction in view of the Statutory bar, and the plaint was returned to the plaintiff-petitioners under Order 7, Rule 10 of the Civil Procedure Code. The appellate Court also concurred with the trial Court and the petitioners have approached this Court in its revisional jurisdiction.
5. I have heard the learned counsel for the parties and thoroughly gone through the record of the case with their assistance. The assistance given by Mr. Abdul Latif Khan Baloch, Advocate counsel for respondents 1 and 2 is highly appreciable.
6. The only question for determination is the interpretation of section 2 of the 'Kafiyat-e-Abpashi', which reads, The dispute between the parties is that the plaintiff-petitioners wanted to take water of one watercourse i.e. Known as Vial Murda through another watercourse that is called Vial Zambela. The village to which the water supplied through Vial Murda are:
(i) Khojari Baba.
(ii) Khojari Jana.
(iii) Khojari Khas.
(iv) Village Janbadar land.
(v) Village Sadat Rehmat Shah.
While village Ghoriwala is irrigated through Vial Zambela. These two Vials run parallel to each other and at certain point at point known as Tala Malang they crossing overhead and where Vial Murda comes to an end, a cemented arrangement has been made, so in the case of ' Wafir Paani i.e. Over flow or the water which is not needed, is taken to Vial Zambela. The plaintiffs' claim is that their this water of Vial Murda be also taken through Vial Zambela which the other party resisted on the ground that they have got no such right as evident from the long standing entries in the ' Kafiyat- e-Abpashi which is a kind of record of rights with regard to the rights of water and their use etc. The interpretation which the plaintiffs gave to the above mentioned para. Of 'Kafiyat-e-Abpashi' is that every person can take the water in all Vials (Watercourse) Warkha (Small Watercourse) while according to the defendants including the Government through Collector, this Vial and. Warkha means the smaller one which are used for irrigation by different owners and relates to the internal arrangement of the various landowners within the village and it does not include the Vial larger in size and used for different Mauzas which distribute water amongst the various villages. This confusion has been created by using the words Vial and Warkha for about. All sizes of watercourses used for taking water to a village as a whole and also include the one used for taking water to a Khasra number.
7. The hierarchy established under the relevant law i.e. The Minor Canals Act have conclusively arrived at a conclusion after thorough investigation, inquiries and recording of the evidence and personal inspection by the Presiding Officer and after remand reached at a conclusion impugned in the instant suit. In the last round after the remand of. The case by the appellate and revisional forums, the Collector in his order dated 23-4-1983, the copy of which is Exh.P.W. 5/2, observed:--- "I deem it proper to give brief history of these two Vials and the rights of the parties on the water of these Vials.
5. It is evident from the. Leaf No.42 NaQal Kalifyiat Asperi Nala Kachkot, _Baran Zamila Bandobasti Jadeed (1907-1908) that previously 3/5th share of water on the distribution of 254 ANGUSHT (finger-measure) was flowing in Nala Kackot and 2/5th share of water on the distribution of 189 ANGUSHT (finger-measures) was folowing in Nala Baran. Later on re-distribution was made and 24 ANGUSHT Water for the three villages of Khojari, and Janbadar land and Sadat Rehmat Shah was separated from Nala Baran Vial Zambila and put into Vial Murda Nala Kachkot. But 24 ANGUSHT Water, of Vial Zambila was considered as 21-1/2 ANGUSHT in Vial Murda according to the difference of quantity of shares in the both Vials.. This rearrangement was made vide Deputy Commissioner's order, dated June 2, 1982 (leaf 55 of Kaifiyat Rewai Abpashi) Nala Kachkot, Baran, Zambila Bandobasti Jadeed 1907-1908). After excluding 24 ANGUSHT water for the three villages of.Khojari and Village Janbadar land and the village Sadat Rehmat Shah from Vial Zambila, only 14 ANGUSHT water was left in the Vial Zambila for the villages of Ghoriwala and the village Hasan Khel Jafar Khan. There is no mention of any right of Khojari, Janbadar land and Sadat Rehmat Shah in this 14 ANGUSHT water flowing in Vial Zambila. Moreover the Settlement Officer directed vide his order dated 17-6-1907 (Exh.DA) that the water which according to Kaifyiat Abpashi belongs to one village cannot be transferred to any other village by any one. Now presently, according to the Kaifyiat- Abpashi the rights of three Khojari villages, Village Janbadar land and the Village Sadat Rehmat.
Shah on irrigation water stand vested in Vial Murda Nala Kachkotatt-- the rights of villages of Ghoriwala stand vested in Vial Zambaila Nala Baran.
7. Though the irrigation system is governed by local custom and Rewaj but this fact cannot be ignored that the water of both the Vials in dispute is the water of rights. It is put into both the vials from the very source according to recognized measurement of shares and distributed among the rightful landowners on' a traditional formula of turn and time. Any old tradition or old practice of intermingling the water of both vials is to be proved. The irrigation system is not governed by vague and unfounded custom and Rewaj; the fact is that the governing customs and Rewaj have been well-described and laid down in the Kaifyiat Rewaj Abpashi. Moreover, the water of both the vials is the water of rights which have been specified and measured. There is no provision (in the Kaifyiat Rewaj Abpashi) of putting the water Vial Murda into Vial Zambila for taking to other villages for irrigation. Thus, the plea of local custom and old practice give no support to the plaintiffs' suit.
8. Now I come to the three issues mentioned, in the original suit of the plaintiffs: ISSUE NO.1 The water of the three villages of Khojari, Village Janbadar land and village Sadat Rehmat Shah was measured and separated from Vial Zambila and included in Vial Murda by the, order of the then Deputy Commissioner, Bannu on 2-6-1982 and the aforementioned villages have no more rights of water in Vial Zambila. In this regard leaf No.60/61, section 2 Kaifyiat Abpashi Bandobast Jadeed Village Hasan Khel Jaffar Khan and leaf No.42 Kaifyiat Abpashi Nala Kachkot Baran and Zambila clarify all ambiguity. Any re---amalgamation of water of both the vials would be illegal as far as the order of the Deputy Commissioner dated 2-6-1982 is in force. Moreover, it would only give rise to endless series of disputes, and would disturb the whole system.
ISSUE N0.2 I, myself inspected the spot of TaranaMalangThis Tarna (aqueduct) has been constructed near Kotka Malang over Vial Zambila to carry the water of Vial Murda to the villages of Khojari, the village of Janbadar land and the village Sadat Rehmat Shah for irrigation. In fact is the only legal method of taking the water of Vial Murda to the three villages Khojari, village Janbadar land and village Sadat Rehmat Shah. The very presence of this Tama (aqueduct) contradicts the version of the plaintiffs. Had there been no restriction of putting the water of Vial Murda into Vial Zambila for taking to the aforesaid villages, there was no need of constructing this Tama over Vial Zanlbila. Anyhow there is a cemented floor (Fursh-Pukhta) adjoining the tarna but that is used to throw needless water (WAFIR PANI) of Vial Murda into Vial Zambila and has been made for the same usage'. Section four re ardin WARR PANI Villages Khoiari Kai iat Ab ashi Bandobast Jadeed leaf No.271 deals with such water. But this also gives no support to the suit of the plaintiffs' as they are claiming for putting the water of rights of Vial Murda into the water of rights of vial Zamibla. There is a clear difference between the water of rights and needless water i.e. WARR PANI. There is nothing on record to support the plaintiffs' version regarding the usage of this cemented floor as mentioned in the suit. Had this been permissible, there would have been no need of constructing Tarna Malang over Vial Zambila Moreover, from spot inspection it - came to light that the lands o: plaintiffs are SAROBA (upstream) to the' lands of defendants. This inter--mingling of water may affect adversely the rights of the defendants. Thus, this issue also is not acceptable being contrary to the factual position and Kaifyiat Rewaj Abpashi.
ISSUE NO.3: The plaintiffs, for their lands situated in villages of Ghoriwala can sue for.Their rights of irrigation from the water of Vial Zambila only,. In the competent Court if they are not getting water from the same Vial. They cannot take the water of Vial Murda by putting it into Vial Zembila to their land in Ghoriwala as it could be a clear violation of the order of the Settlement Office dated 17-6-1907 (page 14) Kaifyiat Abpashi Bandobast Jadeed Vial Baran.
Thus finally, suit of the plaintiffs is neither based on lawful ground; nor supported by Rewaj Abpashi.
Hence it is dismissed. Parties to bear their own costs. The learned Additional Commissioner D.I.
Khan Division, Camp a Bannu, vide his order dated 25-8-1983 while rejecting the appeal observed. I para. 6, page 2 of his judgment: "I believe that this is the critical sentence which the two parties have been continuously interpreting each in their own favour but it is important to note that this article belongs only to the Kafiyat Rewaj Abpashi of Village Khojari Babar which will include Khojari Jana and Khojari Khas and at the most the two other villages Janbadar land and Sadat Rehmat Shah i.e. Only those villages which have their water rights from 14 Angusht water through Vial Murda. "
8. After hearing the learned counsel for the parties. On merits of the case it was found that no complicated question is involved in the case which requires appreciation and reading of the, evidence except, as already stated, the interpretation of the relevant .Portion of 'Kafiyat Abpashi' mentioned above, and the determination of the alleged illegality committed by the forums concerned, covered by Issue No.6 with the rest of admitted facts, and finding myself in concurrence with the well-reasoned findings of the statutory forums and in the absence of any illegality or irregularity being pointed out by the plaintiff --petitioners, I do not deem it proper to remand the case only for this limited question to the trial Court for giving finding issue-wise when it is also not the case of the parties that the evidence is deficient and which requires recording of additional evidence.
9. The return of the plaint in the instant suit does not seem to be proper as the plaint is returned only for the presentation before the proper forum but here in this case the remedy before that forums has been exhausted and the plaintiffs have challenged the very verdict given by the forums concerned in which case if the Civil Court did not find the case of any illegality or jurisdictional defector irregularity committed by-the forums concerned, would dismiss the suit, rather than the return of the plaint.
For what has been discussed above, this revision petition fails which is hereby dismissed. The suit of the plaintiff-petitioners also stands dismissed.