MIAN SAQIB NISAR, J. -- Briefly the facts of the case are, that the parties are residents of Chak No. 81/JB where their lands are also situate; they seek irrigation of their land through certain outlets in the Chak. It is the case of the petitioners that respondent No. 3 in connivance of Canal Department, got an order sanctioned by the SDCO and a "nakka" at killa Nos.4 and 5 was sanctioned for the irrigation of his land. Thereafter, respondents No. 3 and 4, conspired and respondent No. 4, filed an appeal against the order of SDCO and got the order dated 13.2.1978, sanctioned by DCO on the ground that both of them had compromised. As a result of this order, the rights of the petitioners were affected because the land of respondent No. 3 was at lower level compared with the land of plaintiffs and thus they could not get sufficient water. It was claimed that the petitioners were not served with a notice before passing of the impugned order, consequently, they sought declaration that the orders memtioned above dated 20.8.1997 and 13.2.1978, are void.
2. This suit was resisted by the petitioners. Issues were framed and the learned Trial Court vide judgment and decree dated 24.11.1982 by giving findings on issues Nos. 3 and 4, came to the conclusion that petitioners were not served with any notice before passing of the orders and thus such orders are untenable in the eyes of the law. Appeal was preferred by respondents and the Court in appeal reversed the judgment and decree of the Trial Court holding that the notice u/S. 68 of the Canal and Drainage Act, 1873 in terms of Rule 79, were issued in the name of the share holders but none appeared when the case was finally decided by the SDCO. According to the Court in appeal, a presumption of correctness is attached to the Official Act and as there were notices available on the record, thus it would tentamount to service of the petitioners.
3. I am afraid that the findings of the learned Court in appeal is not tenable in the eyes of law, simply for the reason that some copies of notices are available on the record would not show by itself that such notices have also been issued to the petitioners and were served upon them.
Petitioners had led evidence to show that they had not received the notices and as it was a proof of a negative fact, therefore, their statements would be sufficient discharge of onus. It was thereafter, for the respondent to show that the notices were issued to the petitioners; they were served and despite service thereof, they failed to appear. Nothing has been brought on record on behalf of the petitioners, consequently, I hold that the judgment and decree of the Appellate Court is based upon misreading of the record as also mis-application of relevant law and not tenable in the eyes of law, therefore, the judgment and decree of the Court in appeal is set aside and the judgment and decree of the Trial Court is upheld.