P L D 1964 Supreme Court 197 (PLP)

S. A. RAHMAN, J.‑This appeal comes to us by way of special leave, from a judgment and order of a Division Bench of the Lahore High Court passed in second appeal. It arises out of a suit brought by the plaintiffs‑appellants for a declaration that they were entitled to irrigate their land from two sources, known as Dhand Chhitta and Dubba Ata Muhammad, by means of kassis and ads, according to their needs, and for consequential relief. The suit was decreed by the trial Court but on appeal, the Senior Sub‑Judge, Muzaffargarh, modified the decree by declar ing that the plaintiffs would only be entitled to irrigate their land by means of ads, that is, surface channels, and not by deeper channels like kassis. Both parties filed cross appeals In the High Court and a learned Single Judge of that Court decided that the plaintiffs should be entitled to take water from the Dhand Chhitta through two kassis instead of ads. The defendants went up in appeal under the Letters Patent of the High Court and a Division Bench of the Court again modified the decree and limited the plaintiff's right to irrigation of a specified portion of the land, namely, once every year before the sowing season, in one out of three specified periods of time. It was declared that the water would be carried by means of one kassi only, having its origin at a fixed point and passing through certain fields of the defendants. The plain tiffs were required, before exercising the right granted to them, to pay the proportionate cost of the improvements effected by the defendants in the shape of a bund and regulator on the Dhand Chhitta. The plaintiffs were made liable to pay one‑sixth of Rs. 13,200 into Court, for the benefit of the respondents. Further, the expenses to be incurred in future, in connection with the maintenance and repairs of the dam and embankments, were also to be borne by the parties, in the same proportion. The lands owned by the parties were previously jointly held by them and there was a partition between them in 1908, evidenced by a registered deed. Special leave was granted to consider :‑‑ (1) the interpretation of clause (5) of the deed of partition in the light of the document itself as a whole and surrounding circumstances ; (2) the extent of the plaintiffs' right to irrigate their land from the Dhand Chhirta and manner of its exercise; and (3) the liability of the plaintiffs, if any, to pay the cost of the so‑called improvements effected by the defendants. It appears that Mst. Ghulam Zohra respondent had died during the pendency of this appeal. An application has been moved on behalf of the appellants, praying that her legal representatives (who happen to be the appellants themselves) may be brought on the record in her place. Mr. Mahmud Ali who appeared for the contesting respondents, raised no objection. The legal re presentatives named in the petition of the appellants will there fore be substituted for Mst. Ghulam Zohra and would represent her interests. At the time of the partition in 1908, about 157 acres of land in village Lundi Pitafi, in the Alipur Tehsil of Muzaffargarh District, appear to have fallen to the share of the appellants. The respondents got a much larger aria in this village as a result of this partition. There were, it seems, originally two sources of water for irrigating the joint lands, known as Dhand Chhitta and Dubba Ata Muhammad. The former was situate in the lands which had been allotted to the respondents while the latter appar ently fell within the area that was assigned to the appellants. Clause (5) of the deed of partition was to regulate their rights in respect of these two sources of water, henceforward. This is set out below:‑ "On the Dubba known as Dubba Ata Muhammad Wald and Dhand Chhitta, each party has power to put up its own new Jhalar. But for taking an ad through the land of the co‑sharer (owning at the spot) adjoining the Dubba or Dhand, the agreement is that the other co‑sharer can take the ad through such land, before the sowing by the co‑sharer owning such land, but not after the sowing. Such other co‑sharer will bear the expenses of such ad himself." In course of time, Dubba Ata Muhammad appears to have dried up and no longer exists as a source of irrigation. The dispute in the present case therefore relates to the right of water from Dhand Chhitta alone. The defendants‑respondents resisted the suit of the appellants on the ground that the right of the parties to receive water from these two sources was reciprocal and since the defendants had lost the right to take the water from Dubba Ata Muhammad by reason of its disappearance, the plaintiffs too were no longer entitled to take water from Dhand Chhitta. It was further pleaded that the change in the mode of irrigation which had resulted from the improvements introduced by the defendants, had destroyed the right of the plaintiffs to receive water from this Dhand. Pre viously, it seems, the method adopted by the parties was to put up Jhalars on the Dhand, in which the water level was lower than the lands, so that lift irrigation had to be resorted to. After the bund and regulator had been put up by the defendants, the water level rose, so that flow irrigation was possible. The defendants suggested that at the most, the plaintiffs were entitled to put up one Jhalar, in accordance with clause (5) of the partition‑deed. The Letters Patent Appeal first came up before Muhammad Munir, C. J. and Muhammad Sharif, J. That Bench observed as follows in their order dated the 13th of March, 1951 :‑ "A careful reading of the partition‑deed would reveal that the plaintiffs were admitted to have the right of irrigating their fields and to prepare them for winter sowing, that is, the rabi crop. There was no number of jhalars that could be put up by the plaintiffs fixed and it would mean therefore that the real purpose was to get as much water as was considered necessary to prepare the land for the rabi crop. Before the appeal can be rightly determined, it is necessary to have a report on the following matters:- (1) Before the construction of the bund on Dhand Chhitta, how many jhalars did the parties have to irrigate the land in their respective possession? (2) What quantity of water was drawn by one jhalars? (3) After the construction of the bund, what has been the increase in the supply of water to defendants' land by flow irrigation? (4) Whether it is possible for the plaintiffs to set up jhalars now and to draw the same quantity of water for their lands as they used to do before the construction of the bund? (5) What is the quantity of water really necessary for the purpose of preparing the plaintiffs' lands for the sowing of the rabi crop? (6) Is it possible for the plaintiffs to take in any other manner the same quantity of water as before the construction of the bund: if so; by what means? (7) If the plaintiffs are permitted flow irrigation, what should be the size of the water channels to take to the plaintiffs land (i) the same quantity of water as before the. construction of the bund and (ii) the same quantity of water as the defendants are now taking by flow‑irrigation? (8) What expenses have the defendants incurred in building the bund? The learned Subordinate Judge shall allow the parties to lead evidence and should also examine an irrigation expert on the matters referred to above." In pursuance of this order the learned Senior Sub‑Judge, Muzaffargarh, appointed a Local Commissioner in the person of the Sub‑Divisional Officer, Canals, Jatoi. On all questions except question No. 1, regarding which he asked the parties to lead evidence before himself, the Local Commissioner submitted his report dated the 13th of August 1951, to the Senior Sub‑Judge. The parties were allowed to put in objections to that report and finally the Senior Sub‑Judge submitted his own report to the High Court, dated the 15th of December 1951. The answers he returned to the 8 points that were formulated by the Division Bench were as follows :‑ (1) The plaintiffs had two or three jhalars on the Dhand for irrigating their land while the defendants had five such jhalars. (2) One jhalar was able to draw 0.2 to 0.25 cusecs of water in the normal circumstances. This would be suffcient to irrigate about 6 acres or 12 bighas of area. (3) The estimate of the Local Commissioner that after cons truction of the embankment and the regulator there had been at least 100% increase in the irrigated area and in the supply of water, was accepted as correct. (4) It was agreed by both the parties before the learned Senior Sub‑Judge that jhalars were no longer practicable on the Dhund. (5) Land measuring 157 acres belonging to the plaintiffs -appellants would require 4 cusecs of water. (6) Irrigation of the plaintiffs' land was now possible by flow of water only and in no other manner and there was no other source of irrigation for the particular lands of the appellants which were under consideration in this case. Four cusecs of water could not flow through an ad and a kassi was there fore inevitable. (7) A typical cross‑section of a kassi for flow of 4 cusecs of water was given on sheets Nos. 4 and 5 of the Local Com missioner's report. The shape would differ according to the level of the land through or over which it had to pass at different stages. It would be one foot and six inches, wide at bottom and one foot deep. There would be no occasion for the plaintiffs to take the same quantity of water as the defen dants were now taking by flow‑irrigation, as the plaintiffs had 157 acres only while the defendants owned 2349 acres of land irrigable from the Dhand. (8) The Local Commissioner had assessed the cost of the improvements made by the defendants at Rs. 16,500 at P. W. D. rates. The Senior Sub‑Judge thought that the figure of Rs. 16,000 should be accepted as the proper cost, after deducting Rs. 500 on account of tree plantation by the defendants and that it should be further reduced by 40%. The learned Judges of the Division Bench who finally dis posed of the appeal in the High Court, after recounting the history of the case and the facts proved according to the Courts below, observed as follows :‑ "The trial Court appointed a Local Commissioner and after examining his report has come to certain conclusions on the matters referred to him. These conclusions are contained in his report, dated the 15th December 1951. After perusing the report we find that the difficulty has not been appreciably solved and some arbitrary method will have to be employed for apportioning the water of Dhand Chhitta between the parties. We sent for the parties and after hearing them make the fol lowing order :‑ (1) The plaintiffs shall be entitled to irrigate 584 kanals 6 marlas of their land once every year before the sowing season, in the last week of July from the 12th August to 19th August and from 1st September to 7th September. Once they have irrigated this land they shall not be entitled to further irrigation during that year. (2) The water will be carried by means of one Kassi which will have its origin at a point in the western boundary of field No. 1217 belonging to the defendants and will pass through their fields Nos. 1212, 1427 and 1428 and shall then flow into field No. 1425 which is owned by the plaintiffs. (3) Before exercising this right, the plaintiffs shall pay the proportionate cost of the improvements effected by the defen dants. The cost was assessed by the Local Commissioner who was appointed by the trial Judge, at Rs. 16,500 but he has suggested a reduction of 40%. We have considered the reasons given by the Local Commissioner for suggesting the reduction but we are of opinion that such a heavy reduction is not justified. We shall, however, allow a reduction of 20% which brings the cost of improvement to Rs. 13,200. The plaintiffs shall deposit in the trial Court one‑sixth of this amount, that being the approximate proportion between the areas which each party can irrigate from the water of the Dhand Chhitra. The expenses to be incurred in future in connection with the main tenance and repairs of the dam and embankments etc. shall be borne by the parties in the same proportion. The decree passed by Cornelius, J. is modified to the extent indicated above. The appeal is otherwise dismissed, but in the circumstances of the case the parties are left to bear their own costs." Mr. Siraj‑ud‑Din Ahmad Pal, on behalf of the appellants, has put forward the following grievances in respect of the order of the High Court:‑ (1) The appellants have been allowed to irrigate 584 kanals and 6 marlas of land only instead of 157 acres, which was irrigable from this source. (2) The learned Single Judge had allowed them to irrigate their lauds through two Kamis but their number has been reduced to one by the Division Bench. (3) The point of take‑off of the Kassi has been fixed arbitrarily and its passage has also been confined to certain specified field numbers. (4) The appellants' right had been limited to certain specified times in the year for irrigation purposes. (5) The appellants have been burdened with proportionate cost of the bund and regulator without their being given any right of ownership in these structures, and they have also been made liable for future maintenance costs of these structures unjustifiably. We will deal with these points in seriatim :‑ In para. 3 of the plaint, as has been pointed out by Mr. Mahmud Ali on behalf of the respondents, the plaintiffs had specifically referred to 300 Kanals and 10 Marlas of land in Patti Pakkewal and 283 Kanals and 16 Marlas of land attached to the well known as Aziz Muhammad Khan Wala, by means of Khata and Khatauni numbers, though they had added that they continued to own and possess these lands "along with other lands". Mr. Mahmud Ali suggests that the specified Khata and Khatauni numbers add up to 584 Kanals and 6 Marlas in area and the Courts below had interpreted the recitals in the plaint to mean that the plaintiffs were claiming the right of irrigating this area of land only. This undoubtedly is the first impression that one gets on a perusal of para. 3 of the plaint. In para. 4 of the plaint, however, it has been specifically pleaded that the Dhand Chhitta had been irrigating the entire lands of the parties sinee ancient times and that there was no other source of irrigation of the plaintiff's lands. It appears to us that originally the parties were not adverting to the question as to how much area of land the plaintiffs were entitled to irrigate from this source, The controversy between them centred on the right of the plaintiffs itself, to take the water from the source indicated. It was not till the first Division Bench had formulated certain points for further investigation that the question of the total area of the plaintiffs' land which had to be irrigated from this source, came up for consideration. This area was specifically mentioned as 157 acres by the Local Commissioner, and to his report on this point, no objection was raised on behalf of the respondents at any stage. The estimate of water required by, the plaintiffs for irrigation purposes was fixed on the basis of this area at 4 cusecs. To that also, no exception was taken on behalf of the respondents either in the shape of an objection to the Local Commissioner's report or to the remand report submitted by the Senior Sub‑Judge, which reiterated the same position. The Courts below have also observed in the course of their judgments, that the 5th clause 9f the partition‑deed of 1908 did not place any limitation on the number of jhalars that either party could have on the two sources of irrigation and that the idea was to enable them to irrigate all their lands as and when necessary. This construction of clause (5) of the agreement is consistent with the generality of the language employed therein. The contention that the plaintiffs had lost their right to take water from Dhand Chhitta because of the disappearance of Dubba Ata Muhammad, was also rejected and it seems rightly, as no such reciprocal arrangement as was suggested by the respondents could be spelt out of the partition‑deed. Mr. Mahmud Ali stresses the point that in 1908, originally, a very small area of land was being irrigated by the plaintiffs from Dhand Chhitta and as their right was in the nature of an easement, they should be limited to claiming that right, only in respect of the area that received water from this source, in 1908. As observed above, however, clause (5) of the partition deed, involved no limitation of area of either party for irrigation purposes and the intention of the parties seems to have been to ensure a supply of water for all their lands commanded by this source, as and when they were brought into cultivation: In any event, the definite finding given by the Local Com missioner and endorsed by the Senior Sub‑Judge about the area of land to be irrigated by the plaintiffs from this source, not having been objected to, at .the appropriate stage of the case, we are unable to accede to the contention raised on behalf of the respon dents that the plaintiffs should be held entitled to irrigate only 584 Kanals and 6 Marlas of land and not the whole of 157 acres. It may be mentioned that even 157 acres is not the total area of the lands that fell to the appellants at the time of partition in 1908. This area apparently represents the lands which could be irrigated from Dhand Chhitta. We hold therefore that there was no justification for limiting the plaintiffs to the area of 584 Kanals and 6 Marlas of land, as seems to have been done by the learned Judges of the High Court. On the findings of fact arrived at in the Courts below, they are entitled to irrigate 157 acres of land from this source. The second point urged for consideration is that the plaintiffs should not have been confined to taking out only one Kassi for irrigation purposes. The finding of the Local Commissioner and of the learned Senior Sub‑Judge, however, was that one Kassi of the specifications mentioned in the Commissioner's report, would be capable of taking a discharge of water sufficient for the irrigation of 157 acres of land. We are not inclined to cavil at the limitation of the plaintiffs' right to one Kassi of the descrip tion given in the Commissioner's report. This limitation would seem to be in the interests of the parties as it would avoid possible future disputes between them and would have the merit of minimizing the interference with the respondents' lands. The consideration that future disputes between the parties should as far as possible be eliminated, would also redound to the desirability of fixing the point of take‑off of the one Kassi allowed to the plaintiffs and to fix its passage through specified field numbers as the learned Judges of the High Court have ordered. The plaintiffs' interests arc not likely to be prejudiced by this process and we see no strong ground for interfering with that part of the High Court's order. For the same reason, we are also not disposed to hold that the fixing of times of irrigation which are presumably the times when the water supply in the Dhand is supposed to be at its highest is in any way open to excep tion. It has to be remembered that the partition‑deed gives the right to the plaintiffs to have irrigation water once a year before the respondents have started sowing their lands. If the times of irrigation are specified, future bickerings between the parties may be avoided. Leaving the whole question vague and indefinite would sow the seeds of controversy between them. Under modern conditions, the respondents may be able to start sowing special crops at any time of the year. The so‑called limitations imposed by the learned Judges of the High Court in this respect, therefore, appear to be reasonable and just and in consonance with the rights of the parties. There then remains the question of contribution by the appellants towards the cost of the bund and regulator. On behalf of the plaintiffs‑appellants, it is argued that if they are to pay a proportionate cost of these structures, they should also be given ownership rights in these structures, to the same extent. This argument is countered by Mr. Mahmud Ali by saying that no such plea was taken in the grounds of appeal in this Court and only the liability of the appellants to pay the proportionate cost, was challenged in the petition for special leave. On behalf of the respondents, it is even suggested that they would rather forego the proportionate share of the cost of these structures than let the appellants become owners thereof. This, in our opinion, would be a fair position to take. The legal consequence of the appellants paying a proportionate share of the cost of these structures would have been to make them owners thereof to that extent. The respondents apparently anticipate that by a joint ownership of these structures the foundation will be laid for future differences between them. We hold therefore that the appel lants need not pay any part of the cost of these structures, but it should be distinctly understood that they will have no right of ownership in these structures whatever. As regards the future cost of maintenance and repairs, it is clear that the appellants would be benefiting in the shape of more efficient means of irrigation than before, from the existence of these improvements made at their own expense by the respon dents, without any objection on the part of the appellants and it would be reasonable, therefore, that they should bear a propor tionate share of those charges of maintenance and repairs. That part of the High Court's order therefore does not seem to require any interference by this Court. It should not be difficult for the parties to arrive at an agreed estimate of the total charges for maintenance and repairs, in every year. We therefore allow the appeal in part and modify the judg ment and decree of the High Court to the extent indicated above. The parties would be left to bear their own costs in this Court. A. H. Order accordingly.