The applicants are Khatedars of lands being fed by watercourse Kariya Murad Ex-Nara Canal. In 1981 they filed F.C. Suit No,118/1981 in the Court of Senior Civil Judge, Sanghar claiming that the lands of the respondent No,3, which were under the command of another watercourse i,e, Kariy a Marvi Chandan had been illegally brought on the share list of the users Kariya Murad thereby impairing the plaintiff's share of supply of irrigation water. A declaration that such share list was illegal and a permanent injunction against the respondent No,1 and the official respondent i,e, Provincial Sindh and Executive Engineer Thar Division was prayed for before the trial Court. The suit was contested by the respondent No,1 only. He raised certain objections to the maintainability of the suit and on merits contended that his land was always being irrigated from Kariya Murad and the applicant's assertion that it had been illegally brought under the command of the said Kariya through the impugned share list was not correct. Apart from the examining the applicant/plaintiff No,1 the applicants examined one Abdul Haleem, a clerk in the office of Executive Engineer Thar Division Mirpurkhas who produced Kariya Register and certain other documents.
2. The respondent No,1 examined himself and produced certain documents. The trial Court decreed the suit on 14-3-1985 and the respondent No,1 preferred Civil Appeal No,52/1985 in the Court of Additional District Judge, Sanghar which was allowed vide judgment dated 12-1-1988.
3. On the question of maintainability of the suit it was apparently urged before the trial Court that the suit was barred against the respondents Nos.2 and 3 (the Provincial Government and Executive Engineer) on the ground that section 88 of the Sindh Irrigation Act barred suits or legal proceedings against a public servant in respect of anything done or purported to be done in good faith under the provisions of the Act. The learned trial Court held, and rightly, if I may so, that the aforesaid bar could not be attracted to mala fide actions in violation of the Act. Before the Appellate Court, however, such objection was raised on a different ground and it was contended that section 26 of the Sindh Irrigation Act provided a mechanism for settlement of disputes relating to use of water course and when special law conferring certain rights also provided mechanism for enforcing such rights or resolve disputes arising therefrom the jurisdiction of Civil Courts impliedly barred. The proposition of law is indeed correct. However, to examine whether it could be attracted in the instant case it might be pertinent to reproduce the aforesaid section 26:
4. "26. Whenever a dispute arises between two or more persons in regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a watercourse, or among joint owners of a water-course, as to their respective shares of the expense of constructing or maintaining such watercourse, or as to the amounts severally contributed by them towards such expense, or as to failure on the part of any owner to contribute his share, Any person interested in the matter of such dispute may apply, in writing, to any Canal Officer duly empowered to receive such applications, stating the matter in dispute. Such officer shall thereupon give notice to the other persons interested that, on a day to be named in such notice, he will proceed to inquire into the said matter, and if all the persons interested consent, in writing, to his being arbitrator, he may pass his order thereon; failing such consent, he shall transfer the matter to the Collector, who shall inquire into and pass his order thereon. Any order passed by the Collector under this section shall, remain force until set aside by a decree of a Civil Court."
4. Upon a careful reading of the above provision I am doubtful if it can be construed to provide for a complete mechanism for resolution of disputes. Admittedly the Canal Officer appointed under the Act has no independent power to adjudicate upon disputes. He can only act as arbitrator if all the parties to the dispute agree to such appointment. In view of section 46 of the Arbitration the Award would become enforceable only if a decree in its terms is made by a Civil Court. On the other hand if there is no such consensus he can only refer the matter to the Collector and, as last line of the above-quoted provision indicates, an order passed by the Collector can only remain in force till it is set aside by decree of a Civil Court. I am therefore of the view that it cannot be said that these provisions provide for an exclusive remedy under the statute.
5. Moreover, it is settled law that immunity of actions taken under statutory powers is only confined to such actions which are taken strictly within 4 the four corners of the statute. It was expressly alleged in the plaint that the respondent No,1 in collusion with the respondents Nos.2 and 3 fraudulently manipulated the entry of the respondents lands in the Kariya Register of Kariya Murad and the impugned share-list was prepared through manipulation of records. It was also alleged that such change was made without notice to the applicant i,e, the Khatedars of Kariya Murad in violation of statutory provisions of the Sindh Irrigation Act. It is the evident that the impugned action was called in question as being mala fide in fact and law as such I am clearly of the view that ouster of jurisdiction of Civil Courts could not be claimed. Therefore, the findings of the Appellate Court holding that the suit was not maintainable cannot be sustained.
6. On merit, however, the position appears to be different. The real controversy between the parties was whether the respondents' lands had been unlawfully brought on the record of Kariya Murad from that of Kariya Marvi Chandan. At this stage it may be pertinent to mention that at one stage the suit was dismissed for non-prosecution by the trial Court. It was subsequently restored and fixed for the evidence of Abdul Haleem, a clerk of the office of Executive Engineer. Such evidence was recorded in the absence of respondent No,1 as apparently he had no notice of the restoration of the suit and as such the witnesses were not cross-examined. In these circumstances the Appellate Court exercised the power to record additional evidence and this Abdul Halim was recalled and re-examined. Upon a detailed analysis of the documents produced by this witness the Appellate Court reversed the findings of the trial Court. Indeed no exception could be taken to the course adopted in admitting additional evidence and no objection was seriously pressed by the applicant on this score. Nevertheless Mr.Bahadur Ali Baloch learned counsel for the applicants vehemently argued that the findings of the Appellate Court were premised on misreading of evidence. He stressed that admittedly the unassessed Survey No,72 from which the lands of the respondent No,3 were carved out and allotted Surveys Nos. 452 and 475 were borne on the Register of Kariya Marvi Chandan. Having gone through the pleadings and the evidence I find that there is no admission to such effect. The only basis of such assertion is the evidence of the aforesaid Abdul Haleem premised on certain entries in old Kariya Register. The Appellate Court has indeed referred to it in the impugned judgment. Nevertheless it has been observed that the same stands contradicted by another entry which shows that certain pieces of land forming the part of the unassessed Survey No,72 (belonging to other landowners) were shown under the command of Kariya Murad. The foundation of the applicants' case i,e, the contention that the respondents' land originally was under the command of Kariya Marvi Chandan is exclusively premised upon entries in Old Kariya Register. The impugned judgment shows that a minute examination of all the registers was undertaken by the Appellate Court and several contradictions, interpolations over writings etc. Were found. Therefore after discussing these factors and the irregularity in the maintenance of register the Court came to the conclusion that the reliance could not by placed on certain entries tending to support the applicants' case. The applicants therefore, cannot complain that relevant evidence was not taken into consideration.
7. With respects to the conclusions drawn by the Court it might suffice to say that under section 115, C.P.C. This Court exercises a limited jurisdiction it cannot undertake the reappraisal of evidence or substitute its own finding for those recorded by Court below. Once it is found that upon a consideration of all relevant evidence the Court below came to a conclusion which was possible the same cannot be set aside in revisional jurisdiction. Mr. Abdul Hayee Memon learned counsel for respondent No,1 contended that even when the conclusions of the Courts below were at variance each other the findings of the Appellate Court were entitled to greater weight. He referred to the case of Mumtaz Begum v. Allauddin (PLD 1993 Quetta 37) where Munawar Ahmed Mirza, C.J. (as his lordship then was) observed; "It is well-settled that when Appellate Court has assessed the evidence and based conclusion of cogent reasons then the findings of appellate forum must be given greater weight."
8. Mr. Bahadur Ali Baloch then argued that the Court below failed to appreciate that there was no evidence to indicate that the mandatory requirements of law were fulfilled before the land in question was transferred to the command of Kariya Murad. He argued that if the source of water supply to the respondents' lands was to be changed from Kariya Marvi Chandan to Kariya Murad it was mandatory to invite objections from the users of the latter watercourse under section 91 of the Sindh Irrigation Act. This contention could indeed have force only if it were established that such change of source of supply had actually taken place. The respondents' case, however, has consistently been that water was always supplied to him from Kariya Murad and the applicants have not been able to prove the contrary. The contention therefore must fail.
9. Mr. Baloch then argued that the Appellate Court was wrong in placing the entire burden of proof on the applicants and was not justified in dismissing the suit despite the fact that no substantial evidence was led in support of respondents' assertion. I regret I cannot agree. It was admitted that presently the respondents' lands are shown to be under the command of Kariya Murad. The applicants alleged that they were previously under the command of Kariya Marvi Chandan but the respondent denied such allegation. Apart from oral statements refuting each other's contentions, the only evidence brought in support of the applicants' contention was certain entries in old registers. These entries were found to be mutually contradictory and unreliable. The finding of the Appellate Court to the effect that the burden laid upon the applicants who failed to discharger the same, therefore, does not appear to be open to question.
10. For the foregoing reason, there is no merit in this application. Above are my reasons for dismissing the same vide short order announced on 5-12-1997.