P L D 2003 Karachi 303 (PLP)

Only Ali -Muhammad resisted the suit by filing written statement, whereby, he claimed the consent statement to be valid and legal document. He also claimed the sanction order passed by Executive Engineer to be perfectly legal and proper. He raised legal objections of limitation, and also challenged the jurisdiction of the Court and maintainability of the suit. The Trial Court, after recording the evidence, decreed the suit by judgment and decree dated 4-1-1987. The learned Additional District Judge, Badin, however, set them aside in appeal by his judgment and decree dated 23-5-1987, against which present revision application has been filed. Applicants' learned Advocate contended that the decision of the Appellate Court is illegal and without jurisdiction for multiple reasons. It ignored the mandatory requirement of section 91, Sindh Irrigation Act while treating the sanction order passed by Executive Engineer the respondent No. 1 to be legal one. The order of the respondent No.4 was based upon consent statement allegedly signed by the owners of watercourse 18-R which, in fact was fabricated arid a fraudulent document. The evidence proving it to be fraudulent document was ignored illegally by the learned Appellate Court. The presumption on the basis whereof the so called consent statement was taken to be legal one could not be drawn in presence of substantial evidence which was sufficient to rebut the presumption. It did not attach any weight to the absence of signatures of applicants Mubarak, Taj Muhammad, Ahmed, Natho, Atoomal, Gianchand and Dewchi who are admittedly the owners of watercourse 18-R. It also bypassed the evidence that many of the Khatedars had passed away and no consent was obtained from their heirs. Two dead persons, namely Ali Dino and Khuda Bux at Serial Nos.3 and 14 in the consent statement were shown to have signed themselves. It was also argued that present is the case of fraud and the order of respondent No.4 based upon fraudulent consent statement is without jurisdiction, therefore, limitation provided by Article 14, Limitation Act, becomes immaterial. Learned Advocate representing Ali Muhammad, the respondent No.4, defended the impugned judgment and decree contending that the applicants/plaintiffs did not seek declaration in respect of the consent statement. They simply sought the declaration in respect of the change of peach order passed on 28-5-1977, which was based on the consent statement, and without declaration in respect of the consent statement the order of Executive Engineer cannot be declared illegal or void. He also contended that although the consent statement indicates some omissions, as signatures were not obtained from some of the Khatedars mentioned in the list and one dead person is shown to have signed himself, but those Khatedars have not challenged the change of peach. The applicants, however, cannot challenge the change of peach on the ground of fraud, if any, practised upon others. The central issue of the matter is the compliance of section 91, Sindh Irrigation Act. 1879 (hereinafter referred to as the Act), therefore, it will be beneficial to reproduce the same. It reads as under:-- "91.--(1) Whenever it appears to any Canal Officer not inferior in rank to an Executive Engineer that it is expedient to change the source of water supply of any land for the more efficient distribution of water he shall serve a notice on the holder or holders of the land and, if he proposes to transfer the source water supply of the land to any existing watercourse, on the owner or owners of such watercourse also, calling upon them to state in writing their objections, if any, as to the source of alignment or construction of the proposed watercourse. (2) (i) If no objection is raised within thirty days from the date of service of the notice, the Canal Officer may change the source of water supply of the land in such manner as he thinks expedient. (ii) If any objections are received within the said period of thirty days, the Canal Officer shall give the holder or holders of [the land and the owner or owners of the watercourse] a reasonable opportunity of being heard and may, if the said objections are settled to change the source of water supply accordingly. (iii) If no settlement in respect of the said objections be arrived at between the Canal Officer and the holder or holders of [the land and the owner or owners of the watercourse], the Canal Officer shall forthwith refer the matter to the Collector whose decision (which shall be given after giving the holder or holders of the land affected an opportunity of being heard) subject to any orders that may be passed in revision by the [Commissioner], shall be final and conclusive as regards the alignment and construction of the proposed watercourse and shall not be called in question in any Civil Court." The provisions show that for change of the source of water supply of any land by transfer of that land to the existing watercourse the requirement is service of a notice on the owners of such watercourse calling upon them to state in writing their objections, if any, as to the change of the source i.e. shifting of the land to their watercourse. If no objection is raised within 30 days from the date of service of the notice then only the Canal Officer i.e. Executive Engineer concerned can change the source of water supply of the land. In present case it is not claimed that any separate notice was served upon the owners of watercourse 18-R individually. Here it is claimed that the owners of said watercourse consented to the transfer of land to their watercourse by putting their signatures on the consent statement or by affixing their thumb-impressions thereon. The consent statement has been produced in evidence as Exh.72. It is the most controversial document. It will be relevant to mention here that although the statement shows that Abdar of the beat had obtained signatures upon it and Mukhtiarkar, Talukw Badin had attested it but none of them put himself in the witness-box. It was All Muhammad Bhurgari the .respondent No. 1 alone who defended the consent statement claiming it to be a legal document. However, he too, while depositing in the Court, stated that the consent statement was not signed by the owners of the watercourse in his presence. The consent statement Exh.7 if examined minutely together with the evidence on record, does not fulfil the requirements of section 91(1) and (2) of the Act. It shows total number of the owners of watercourse 18-R to be 18, out of them 9 Khatedars at Serial Nos. 1, 3, 4, 5, 6, 7, 11, 12 and 13 are shown to be dead. One of them namely Ali Dino Serial No.3 is shown to have signed himself whereas in place of remaining each a single person has signed the statement without mentioning as to whether said signatory was sole heir of the deceased Khatedar or he was authorised by the remaining heirs to give consent on their behalf also. For deceased Qasim and Ghulam Muhammad at Serial Nos.4 and 5 in the list same person Saleh affixed his thumb-impression. It is not clear as to whether he was sole heir of the two deceased. On behalf of Mst. Ammi Khatedar at Serial No.8 one person namely Makhan affixed thumb-mark. Nothing is to show as to in what capacity, he signed the statement. The columns of the signatures against the names of 5 Khatedars namely Rehmatullah, Natho, Ahomal, Gayanchand and Devjee at Serial Nos. 9, 15 to 18 are blank. Against the name of Rehmatullah at Serial No.9 word 'absent' is written. In the statement a dead person Ali Dino is shown as identifier of all the signatures. Besides the above none of the applicants/plaintiffs namely Mubarak Ali, Taj Muhammad, Ahmed, Khabar, Jummo and Saleh figures in the consent statement. All of them claimed to be amongst the owners of watercourse 18-R. Not only the evidence of Muhammad Siddiq Exh.

62. Mubarak Ali Exh.70 and Jummo Exh.75 shows them to be the owners of land settled at watercourse 18-R but Ali Muhammad the defendant/respondent No. 1 himself admitted in cross-examination that Muhammad Jaffar, Khabar. Jummo. Muhammad Siddiq, Saleh, Mubarak, Taj Muhammad and Ahmed are Zaminders of watercourse 18-R. He also expressed his ignorance about the recording of their consent statement. Since the applicants/plaintiffs are admittedly amongst the owners of watercourse 18-R they compulsorily to be put to notice inviting their objections if any. Even their names are not in the so called consent statement. Thus the consent statement, true copy whereof is at Exh.72 cannot be treated as, legal and proper compliance of section 91 of the Act. The Executive Engineer, Lined Channel Division could sanction the change of peach only after the consent of all the Khatedars of watercourse 18-R. Since many of the Khatedars including applicants/plaintiffs were neither put to notice of the proposed change nor did they consent to it. The order of Executive Engineer the respondent No.4 sanctioning the change of peach was surely without jurisdiction and, as such, void. The learned Appellate Court acted illegally by ignoring the entire material on record and accepting it as valid document on the basis of rebuttable presumption in favour of the official act. It was the legal approach when the evidence was on the record it had to be examined and finding was to be given as to whether it rebuts the presumption. By not considering the evidence against the presumption the learned Appellate Court acted illegally. No doubt the suit was filed by the plaintiffs/applicants after expiry of the period of one year from the date of sanction order but the time shall run from the date of knowledge because the order was passed without putting them to notice. On the question of knowledge no evidence has been produced by the respondent which could prove that the applicants got knowledge of the sanction order before the time when they claimed to have learnt about it. According to the evidence of applicant Muhammad Siddiq they learnt about the order of change of peach during proceedings before Deputy Commissioner, Badin. This evidence gets support from the application (Exh.73) made by the applicants to Deputy Commissioner, Badin. In that application they clearly stated that proceedings under section 91, Irrigation Act were pending before Deputy Commissioner which reflects their unawareness about the sanction order. Thus the time will run from the date when they (applicants/plaintiffs) learnt about the order, therefore, the suit was not time-barred. Even otherwise, as held above the order of Executive Engineer was without lawful authority and without jurisdiction and, as such, was void. Ordinary bar of limitation will not apply against the suit challenging the order which is void and without jurisdiction. In the circumstances when the applicants/plaintiffs were not party to the so-called consent statement nor it is an instrument which if not cancelled, will affect them, therefore, it was not obligatory upon them to get the consent statement cancelled under section 29, Specific Relief Act. Moreover, when the sanction order itself has been challenged on the ground that consent statement is fabricated, forged and illegal document, the prayer in respect of the consent statement is inherent and integral part of that prayer. It cannot be split or bifurcated from the prayer in respect of the sanction order. After declaration that the sanction order was void for the reason that consent statement on which it was based was a fraudulent and illegal document there remains no necessity to seek any separate or further declaration in respect of the consent statement or cancellation thereof. In the result of above discussion and conclusions the judgment and decree of the learned Appellate Court is not sustainable and is hereby set aside. Consequently the application is allowed-and the judgment and decree of the trial Court maintained. Respondent Ali Muhammad to suffer costs throughout. H.B.K./M-468/K Revision allowed.