' ZIA MAHMOOD MIRZA, J.---This is a petition for leave to appeal against the judgment of the High Court of Balochistan dated 6-7-1993 dismissing the petitioners' revision petition (Civil Revision No,115 of 1993) directed against the judgments of the Courts below whereby the petitioners' suit and appeal were dismissed.
2. Facts giving rise to this petition, briefly stated, are that the petitioners brought a suit for declaration and permanent injunction against the respondents contending that both the parties (the plaintiffs and the defendant) held joint rights to irrigate their lands from the water-channels in Khasra INos.411/432/441 situate in Mahal Yakh Aab, Mauza Tirkha Kansi, Tehsil and District Quetta, their respective shares in the water being 2/3 and 1/3 that about 25 years back, the predecessor- in-interest of the plaintiffs/peittioners excavated/constructed 9/10 Lamboors (open service wells) in Khasra No,411 for irrigating his adjoining lands and ever since the establishment of the 'Lamboors', the adjoining lands of the petitioners and the respondents have been irrigated from this source according to their respective shares aforementioned; that a drain/Nallah 22 feet wide, meant for flow of rainy and sullage water also existed in Khasra Nos.411 and 432 for the last about 50 years and the parties utilized the water in the said drain according to their respective shares for irrigation purposes; that the defendants/respondents without any authority have recently constructed an additional drain below the aforesaid 'Lamboors' and have also unlawfully and without the consent of the petitioners planted trees on both the banks of the old drain, thus, reducing its width and curtailing the quantity of the water therein with the result that the petitioners have been deprived of their full share of the water from the said drain; that the shadows of the trees planted by the respondents are harmful to the crops in the adjoining lands of the petitioners and that the respondents have illegally filled/covered the 'Lamboors' and brought under cultivation an additional area of approximately 1000 sq. Ft. Thereby depriving the petitioners of the use of water through this source.
3. Respondents contested the suit by filing a detailed written-statement wherein they admitted the existence of the water-channel and joint utilization of its water by both the parties in accordance with their respective shares but controverted other allegations made in the plaint.
4. Learned trial Court framed the following issues:--
(i) Whether the present matter has already been decided according to Preliminary Objection (a) of the written statement?
(ii) Whether the Lamboors have been fixed with the consent of the father of parties on the disputed land?
(iii) Whether the defendants have illegally and without the permission of the plaintiffs established a new drain and also planted some trees over the disputed land?
(iv) Relief?
5. Both the parties adduced evidence, oral as also documentary, in support of their respective contentions. Learned trial Court also appointed a Local Commission who after spot inspection submitted his report. The trial Court after considering the evidence/material brought on the record found Issue No,1 against the defendants/respondents and Issue No,2 in their favour holding on Issue No,1 that the dispute between the parties decided in the year 1971 did not relate to the newly constructed small drain and the trees planted on its banks. On Issue No,2, the finding recorded was that "the alleged 'lamboors' were made by the fathers of the parties". Issue No,3 which is the material issue was decided by the trial Court against the petitioners after thorough discussion of the evidence led by both the parties and the report of inspection carried out by the Local Commission. It was found on this issue that it was established on record that a small drain had been excavated by the defendants and the trees also planted on its bank but it was observed by the trial Court that in doing so, the defendants did not commit any illegality because they established the small drain on their own lands and 6/7 feet away from the joint drain. Believing the evidence of the defendants and relying upon the report of the Local Commission, the learned trial Court further held that the trees planted by the defendants on the banks of new small drain caused no loss to the crops of the plaintiffs whose lands were situate on the other side of the joint drain. It was also observed by the learned trial Judge that keeping in view the distance between the old joint drain and the new drain as also because of the existence of the trees planted on the banks of the drain, "question of seepage does not arise". Consequent upon these findings, the petitioners' suit was dismissed by the trial Court vide judgment dated 31-10-1992.
6. Petitioners preferred an appeal which met no better fate and was dismissed by the learned Additional District Judge-I, Quetta vide his judgment dated 13-3-1993 upholding the findings of the trial Court. Still dissatisfied, the petitioners invoked revisional jurisdiction of the High court under section 115, C.P.C. But without any success as their revision petition, too, was dismissed by a leaned Single Judge of the High Court vide the impugned judgment holding that the Courts below gave concurrent findings of facts on having considered the effect of the oral as well as documentary evidence particularly the report of the Local Commissioner and there being no glaring misreading or misappreciation of evidence, no interference was called for in exercise of revisional jurisdiction.
' The impugned judgment shows that the learned Single Judge repelled the objections raised by the petitioners regarding non-framing of proper issues and inadmissibility of the report of the Local Commission based on the ground that it was not duly proved. Learned Judge observed that the trial Court had rightly framed the issues and no objection was taken by the petitioners at that stage. Such an objection could, therefore, not be entertained in revisional jurisdiction. As regards the report of the Local Commission, the learned judge observed that under Order 26, Rule 10, C.P.C., the report of the Local Commission and the evidence taken by him shall be evidence in the suit and shall form part of the record. It was also noted that the trial Court had brought the report of the Local Commission on record following the procedure mentioned in the said rule. Reliance on the said report was, therefore, rightly placed by the Courts below.
7. We have heard Wali Muhammad petitioner who has appeared in personl and argued the case himself. Main grievance of the petitioners appears to be that proper issues arising from the pleadings were not framed by the trial Court with the result that the entire gamut of the controversy had not been resolved. This objection, as noted above, has been duly delat with and repelled for good reasons by the learned Judge of the High Court. Needless to observe that if any issue necessarily arising from the pleadings was not framed by the trial Court, petitioners could and should have claimed such an issue from that Court. There is nothing on the- record to show that the petitioners took any steps in that direction at appropriate stage. No relief can, therefore, be granted to the petitioners at this belated stage.
Another contention vehemently pressed by the petitioner during the course of arguments was that according to the field book Exh. P-1, the width of the drain/Nallah was 22 feet which was reduced by the respondents to 2/3 feet by establishing a new drain and planting the trees. Precise grievance made by the petitioner was that the Courts below have not attended to this aspect of the matter which has caused serious prejudice to the petitioners. We find that no issue was framed by the trial Court on this aspect and, therefore, the petitioners could not legitimately claim any finding with respect thereto on the basis of the entry in the field book. We have also noticed that this contention/grievance was not urged/pressed by the petitioners before the learned Judge of the High Court.
' In the aforesaid view of the matter, we find no good ground to grant leave to appeal against the impugned judgment of the High Court. This petition is accordingly dismissed.