2007 PLP 1485 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed judgments/decrees dated 19-9-2003 and 27-5-2004 passed by the learned Civil Judge and learned Additional District Judge, Khushab, whereby suit for declaration filed by respondents Nos.1 to 14 was decreed and appeal of the petitioners was dismissed, respectively.

2. Succinctly, relevant facts are that respondents Nos.1 to 14 filed a suit for declaration with permanent injunction, challenging order dated 8-7-1989 passed by Divisional Canal Officer, Khushab to change water Outlet No.30000/R Rajbah Dhak, District Khushab, which was confirmed by the Superintending Canal Officer, Mianwali on 28-7-1993, with the averments that ,this water outlet had been working for last more than 40 years and lands falling within the Chakbandi were being properly irrigated. They further averred that some of the co?sharers/defendants had moved some applications for change of outlet, out of malice but those were dismissed and outlet remained intact. According to them, petitioners' fresh application for change of outlet was erroneously accepted by DCO on the assumption that all the beneficiaries of it, had given their consent to the change introduced through new outlet. According to the plaint, Superintending Canal Officer had not given lawful reasons in declining to invoke his appellate jurisdiction though it was proved that change of Moga from Outlet No.30000/R to 31330/R was detrimental to the irrigational interest of the land-owners and in this manner, both these orders were prayed to be declared illegal, void and of no legal consequence.

3. Petitioners being defendants in the suit, opposed the same by filing their written statement, wherein they raised certain preliminary objections and supported the orders of the Canal Authorities. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. Learned Civil Judge, seized of the matter, after doing the needful decreed the suit of respondents Nos.1 to 14 vide his judgment/decree dated 19-9-2003 adjudging orders of Divisional Canal Officer and. Superintending Canal Officer.

4. Petitioners felt aggrieved of the decree passed by the trial Court and consequently filed an appeal before the learned Additional District Judge but remained unsuccessful as the same was dismissed through appellate judgment/ decree dated 27-5-2004. Petitioners, thereafter, filed this civil revision wherein, respondents, in response to notice by this Court have appeared through their counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended herewith and the one produced by Ziladar Canal Department, Khushab. Undisputedly, parties are co-sharers in the Chakbandi along with certain other land-owners and had been irrigating their lands from Outlet No.30000/R since 1952. Petitioner claimed that Outlet No.30000/R, which was changed to 31330/R, was situated outside the Chakbandi, hence the same was being misused by other land-owners to their disadvantage. They in support of their alleged misuse of water outlet, examined Muhammad Arif Qureshi SCO as D.W.1 and Muhammad Nawaz SDO Canal Department as D.W.2. Both these witnesses could not deny that Outlet No.30000/R is in working condition whereas the other Outlet No.31330/R is not only out of order but is also located at a distance of 100 feet Burji away from the outlet sought to be changed. These witnesses admitted that 420 acres of land is being irrigated through Outlet No.30000/R since 1952 and that on account of change introduced, rectangle No.5 will go out of command. Besides this evidence, command report Exh.P.10 clearly depicted that in the earlier arrangement entire Chakbandi was commandable whereas by new change a part of the land of Chakbandi would go barren, being located on a higher place. Report Exh.P.l1 also confirmed this position. Field map from the record of Ziladar of Canal Department was also examined by this Court whereby grievances of the respondents noted by the two Courts below were materially substantiated.

6. Apparently, DCO passed his disputed order dated 8-7-1989 on the basis of statements of the co-sharers but all of them especially the respondents/plaintiffs are not signatories of that and they had not consented to the change of outlet prayed by the petitioner. Some of the defendants; Province of the Punjab; Canal Department; or DCO/SDCO did not challenge the decree passed by the trial Court by filing any appeal/cross objection and they have not also opposed the concurrent judgments/ decrees of the two Courts below even before this Court. Scan of record and impugned judgments revealed that shifting of Outlet No.30000/R was absolutely unjustified and was not beneficial to any of the co-sharers of Chakbandi, thus the same was correctly struck down by the two Courts below, without committing any error of law/facts. No illegality/ irregularity in terms of section 115, C.P.C. could be shown to have been committed while passing the impugned judgments which being concurrent on a factual dispute, are immune from scrutiny by this Court.

7. For the reasons noted above, no case for interference in revisional jurisdiction of this Court was made out and consequently instant petition being devoid of any merit, is dismissed, with no order as to costs. F.B./S-33/L???????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.