' This petition is directed against the appellate judgment and decree dated 23-10-1995 passed by the learned Additional District Judge, Multan, dismissing the appeal of the defendant/petitioner against the judgment dated 16-1-1991 of the learned Civil judge 1st Class, Multan.
2. Brief facts of the case are that Jamil Ahmad defendant/petitioner submitted application under section 68 of the Canal and Drainage Act for the amendment of Warabandi (Exh.D.1) on 24-8-1989 before the Sub-Divisional Canal Officer, respondent No,2. He issued notice to the parties and after hearing them accepted his application on 4-6-1989 (Exh.D.2) holding that the land of the petitioner is at tail of the Chak, therefore, he was entitled to the Nikal water. Respondent No,1 filed appeal before the Divisional Canal Officer on 5-6-1989 and got stay order vide Exh.D.4. When his appeal was pending before the Divisional Canal Officer he filed a suit on 5-7-1989 in the Court of Civil Judge Multan challenging the order of the Sub-Divisional Canal Officer dated 4-6-1989. Petitioner submitted written statement. On divergent pleadings of the parties following issues were framed on 7-10-1969:--
(1) Whether the order of S.D.C.O. Dated 4-6-1989 is wrong, illegal, mala fide, void against facts and ineffective qua the rights of the plaintiff? OPP.
(2) Whether the plaintiff has no cause of action to bring this suit? OPD.
(3) Whether this Court has got no jurisdiction to adjudicate upon the matter? OPD.
(4) Whether the suit is premature? OPD.
(5) Whether the suit is bad for misjoinder and non-joinder of the necessary parties? OPD
(6) Whether the defendants are entitled to special costs under section 35-A, C.P.C.? OPD.
(7) Whether the plaintiff is entitled to get decree as prayed for? OPP.
(8) Relief.
' Manzoor Ahmad, Allah Wasaya appeared as P.W.1 and P.W.2 in support of the claim of respondent No,
1. Abdul Sattar respondent No,1 appeared as P.W.3 in support of his claim. He produced Exh.P.1 copy of the order of the Sub-Divisional Canal Officer, Exh.P.2 Pert Warabandi dated 17-12-1988 and other documents to substantiate his claim. Jamil Ahmad defendant produced Atta Ullah D.W.1 and himself appeared as D.W.2. He also produced documents Exhs.D.1 to D.10. He also produced copy of Mutation No,70 dated 8-11-1988 through which he purchased 100 Kanals of land from Muhammad Ramzan vendor for which the amendment of Warabandi was sought.
3. Learned Civil Judge after recording the evidence and hearing the parties decreed the suit on 16- 1-1991 in favour of Abdul Sattar respondent No,1 and the appeal of the petitioner was dismissed vide impugned judgment and decree by the learned Additional District Judge on 23-10-1995 against which the present revision has been preferred.
4. Learned counsel for the petitioner contends that the order of the Sub-Divisional Canal Officer was appealed against, and when his appeal was still pending before the Divisional Canal Officer the suit was instituted by respondent No,1, Civil Court was not competent to try the suit as no final order had been passed by the Divisional Canal Officer till then. He further submits that the brothers of the petitioner, namely, Khalil Ahmad and Saeed are also vendees from Muhammad Ramzan who were not impleaded as defendants in the suit, therefore, the suit was not maintainable on that account also. He further submits that the petitioner was entitled to Nikal water as his land was at the tail and the Sub-Divisional Canal Officer was justified in passing the order dated 4-6-1989.
5. Learned counsel for the respondents on the other hand submits that the appeal filed before the Divisional Canal Officer was withdrawn by respondent No,1 after institution of the suit. The order of the Sub-Divisional Canal Officer had become final after withdrawal of appeal and civil suit was competent as no appeal was pending at the time of the decision and relied upon the judgment of the Supreme Court passed in C.P. No,1240 of 1984 to contend that the suit was maintainable without even resorting to the remedy of appeal before the Divisional Canal Officer. He also submits that the petitioner purchased land from Muhammad Ramzan alongwith his brothers Khalil Ahmad and Saeed Ahmad. Petitioner alone made application for amendment of Warabandi whereupon the order was passed by the Sub-Divisional Canal Officer. Khalil Ahmad and Saeed Ahmad neither submitted any application before the Sub-Divisional Canal Officer nor they were party before him and on that account they were not impleaded as defendants in the suit. He has also argued that petitioner had stepped into the shoes of Muhammad Ramzan vendor, he could only be incorporated in the Warabandi in place of Muhammad Ramzan. As he steps into his shoes there was no dispute about Warabandi between the parties and instead of incorporating name of the petitioner in place of Muhammad Ramzan, the Warabandi was changed in an illegal manner and the Civil Court rightly decreed the suit in favour of respondent No,1.
6. I have heard the learned counsel for the parties and perused the record with their assistance.
The contents of application Exh:D.1 show that the petitioner intimated the Sub-Divisional Canal Officer through this application that he has purchased land from Muhammad Ramzan and his name be substituted in Warabandi in place of Muhammad Ramzan vendor and his time for canal water be fixed just after respondent No,1. The perusal of the application indicates that there was no dispute regarding distribution of canal water between petitioner and respondent No, 1 . In fact this was a simple intimation to the said Sub-Divisional Canal Officer by the vendee for substitution of his name for vendor. The perusal of Exh.D.2 shows that respondent No,2 started proceedings as if it was an application regarding a dispute about the distribution of canal water among the shareholders. He has granted Nikal water to the petitioner whereas the objection of respondent No,1 that the dispute regarding distribution of canal water already stood resolved and there was no dispute for adjudication in the present petition before him. The Nikal water existed in favour of respondent No,1 His request for not depriving him of Nikal water was turned down. The Sub- Divisional Canal Officer on the applications of the petitioner instead of substituting his name for Muhammad Ramzan entered upon another field of resolving dispute regarding Nikal water.
Petitioner had not made any grievance regarding Nikal water in his petition. He only intimated the Sub-Divisional Canal Officer for entry of his name in the record of the Canal Department, as vendee. Order of the Sub-Divisional Canal Officer on that score was rightly declared illegal and without jurisdiction.
7. The contention of the petitioner about non-impleadment of his brothers Khalil Ahmad and Saeed Ahmad in the suit and its effect has adequately been dealt with by the lower Courts. Jameel Ahmad petitioner was applicant before the Sub-Divisional Canal Officer. The order of the Sub- Divisional Canal Officer was in his favour. Respondent No,1 has rightly impleaded him as defendant in the suit. Non-impleadment of his co-vendees does not affect the suit in any manner.
Respondent No,1 was aggrieved against the order passed on the application of the petitioner and the filing of suit against him alone for declaring the order passed on his application as illegal and without jurisdiction was rightly declared as such on his suit. Non-impleadment of the co-vendee in no way affects the fate of the suit.
8. Now coming to the last submission of institution of the suit without availing the right of appeal before the Divisional Canal Officer it is pertinent to refer the judgment passed by the Supreme Court in Civil Petition No,1240 of 1984 which is fully attracted to the facts of the present case. In similar circumstances the Supreme Court laid down in para. 2 of this judgment as under:-- "2. The main contention of the petitioners is, and the same had been urged, though without success, before the Courts below, that the suit was not maintainable on the ground that it had been instituted without resorting to the remedy of appeal provided by section 68(3) of the Canal and Drainage Act. We find no reason to interfere with the concurrent decision on this question.
Under subsection (6) of section 68 of the said Act, an order passed by a Sub-Divisional Canal Officer, in the absence of any appeal having been preferred against it, becomes final and remains in force until set aside by a decree of a Civil Court. The effect of not preferring an appeal was that the order of the Sub-Divisional Canal Officer had become final but was nevertheless liable to be set aside by a decree of Civil Court."
The aforesaid judgment clinched the contention of the petitioner. The order of Sub-Divisional Canal Officer after withdrawal of appeal by respondent No,1 from the Divisional Canal Officer had become final and operative against him. Such an order for all intents and purposes was final and has rightly been challenged and rightly set aside by the learned Civil Judge in the case. Respondent No,1 's suit was correctly instituted in the Civil Court against the order of the Sub-Divisional Canal Officer dated 4-6-1989. Learned first Appellate Court has correctly relied upon the aforesaid judgment of the Supreme Court.
9. The concurrent findings of the learned Courts below are supported by evidence on record which warrant no interference. The petition is accordingly dismissed with no order as to costs.