This review petition emanates from the judgment dated 22-3-76, whereby the revision brought by the petitioners arising from the concurrent finding recorded by the learned District Judge, Lyallpur dated 18-4-75 and the learned Civil Judge, III Class, Samundari, was dismissed. The suit of the respondents for declaration to the effect that they were entitled to get 'nikle water' for their lands situated in Square No. 16, Killas Nos. 18, 23, 21 and 11 to the exclusion of the petitioners, and that the order dated 2-3-72 of the D. C. O. Burala Division, Lyallpur, was illegal, ultra vires unjust and not binding upon them with perpetual injunction restraining the petitioners from acting under the order of the D. C. O. Had been dismissed by the learned trial Judge.
2. The facts are given in detail in the impugned judgment and need not be recapitulated. Two points are involved, one is whether the facts and circumstances changed after the D. C. O. Had in.
1967 dismissed the appeal of Din Muhammad, petitioner No. 1 and second is whether Killa No. 11 belonging to the respondent takes water from the watercourse in dispute and that the said Killa is situated on the last. The case of the parties was not properly handled in the Courts below with the result that necessary points were not taken up in the pleadings and the evidence. No doubt, in the orders of the S. D. C. O. And the D. C. O., it is mentioned that the petitioners had started joint cultivation of their lands with the result that the period of turn of their water increased, making deduction of time in view of Nikal feasible but the petitioners did not take this position in their written-statement. The respondents in their plaint. Urged that after 1967 no new dispute arose. In reality there was no dispute inter se the parties since it was Babu who had reagitate the matter by claiming Nikal water the watercourse in dispute. The parties to the present litigation were arrayed on one side against Babu. Nikal was allowed to Babu and both the parties were deprived and both of them brought appeals, whereupon Nikal was allowed to the respondents. Nikal war disallowed to the petitioners on the ground that their turn of water was short, therefore, it was not possible to make deduction of time in lieu of Nikal water. Since the petitioners did not take this stand in their written-statement, no issue could be framed on the point and for this reason, the Courts below have held that no change in the circumstances occurred. No doubt the Canal authorities had in their orders, as mentioned above, observed that time of the turn of the respondents could be deducted in lieu of Nikal, but unless such a position had been taken up by the petitioners in their written-statement, the same could not be met by the respondents. Even the S. D. C. O. And the D. C.
O. Have not stated whether this position was admitted before them or they had found it from the evidence produced by the petitioners. This is a question of fact whether the petitioners had started joint cultivation and it resulted in an increase in their turn of water making deduction of time in lieu of Nikal possible. Since this point was neither decided by the Canal authorities nor the Courts below on any evidence, it is necessary that this matter should be thrashed out once for all. Likewise, the question whether Killa No. 11 belonging to the respondents is irrigated from the same watercourse and is situated on the last is a question of fact and could have been decided on evidence by the Canal authorities and the Courts below. The order of S. D. C. O. Is silent on this point and so is the case with the judgment of the Courts below. The respondents did not urge in their plant in clear terms that Killa No. 11 was being irrigated by the same watercourse and that it was situated on the tail. But this fact cannot be denied that they claimed Nikal for this Killa also. The title of the suit clearly shows that they sought declaration to the effect that they were entitled to get Nikal for their Killas Nos. 18, 23, 21 and 1.1 of Square No. 16 to the exclusion of the land owned by the petitioners.
They could not claim Nikal for Killa No. 11 unless the said Killa was being irrigated from the same watercourse and from portion of Killa No. 21 were taking water on the last. According to the rules, Nikal is given to those cultivators whose land is situated on the last. So although the respondents did not urge in their written-statement in clear words that Killa No. 11 was situated on the last, yet since they claimed Nikal for the said Killa, their case was that Kills No. 11 was being irrigated from the same watercourse and that it was situated on the last. As a matter of fact if it is said that Killa No. 11 is irrigated from the same watercourse, it would be unnecessary to urge that the said Killa is situated on the last, because in reality it comes after Killa No. 21, according to the plan shown to me by the learned counsel. Since this fact was not categorically denied, none of the parties could lead evidence on the point, It is necessary to decide whether Killa No. 11 takes water from the same watercourse. If the order by which the revision was dismissed is allowed to remain intact and the actual position is that Killa No. l l is not being irrigated from the same watercourse, an anamolous position will come into existence and it will be difficult for the Canal authorities to implement the decree passed by the learned trial Judge. To implement the order they shall have to extend the watercourse to take water to Killa No. 11 which is not the intention of the decree passed by the learned trial Judge.
3. Learned counsel for the respondent has argued that the scope of review is very narrow and that the present case is not such that there should be any justification to disturb the order by which the revision was dismissed. I totally agree that an order can be reviewed only if there is an error patent on the face of the record, but at the same time the facts and circumstances of each case are to be considered. According to rule 11 of Order XLVII, not only on account of some mistake on the face of the record, but for other sufficient reasons also review lies. The following words used in clause (c) of rule 1 are very significant "or on account of some mistake or error apparent on the face of the record or for any other sufficient reasons."
4. I have already given the reasons that if the decree passed by the learned trial Judge is kept intact and is not modified, very anamolous position will arise if in reality, Killa No. 11 is not taking water from the watercourse in dispute. So the rulings cited by learned counsel for the respondents, which are PLD1968SC201(?),1976SCMR417andPLD1962SC335 are not helpful in view of peculiar nature of the present case.
5. In view of observations made above, I accept the review petition and partly accepting the revision petition, amend the decree of the learned trial Judge maintaining it to the extent it declared the order of the D. C. O. As illegal and ultra tires, but modify it by directing the D. C. O. To redecide the matter after allowing opportunity to both the parties to produce evidence on the points whether the petitioners cultivate their land jointly and the time of the turn of their water jointly is such that deduction of time from it in lieu of Nikal is feasible, and further whether Killa No. 11 was being irrigated from the same watercourse and if so, was it situated on the last. He would decide the case afresh after deciding these two points.