2010 PLP 2225 (YLR)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this civil revision filed under section 115 of C.P.C. the petitioners/ plaintiffs seek setting aside of order dated 25-2-2010 passed by learned Civil Judge Ist Class, Lodhran and order, dated 1-3-2010 of the learned Additional District Judge, Lodhran whereby both the Courts below dismissed the application of the petitioners filed under Order XXXIX, rules 1 and 2 of C.P.C.

2. Briefly stated the facts of the instant civil revision are that the petitioners/plaintiffs have been irrigating their lands from Outlet No.46500/R and they are resident of Chak No.344/W.B. According to Warabandi, they are irrigating their land without any interruption. They further averred that respondent No.4 filed an application for sanctioning of additional nakka to respondent No.2. There was no need of additional nakka, respondent/ defendant No.2 acted arbitrary and sanctioned new nakka for irrigation of land of respondent No.4. Petitioners/ plaintiffs filed an appeal before respondent No.3, which was dismissed on 9-2-2010. He has challenged the same on the ground that order is illegal, unlawful and liable to be set aside.

3. Learned counsel for the petitioners contended that the petitioners/ plaintiffs being aggrieved from the above said orders, filed suit for declaration in the Court of learned Civil Judge/respondent No.1. Along with the suit, the petitioners also filed an application under Order XXXIX, rules 1 and 2 of C.P.C. The respondents Nos.1 to 3 filed written statement in the above-said suit and they also filed written reply of the application filed under Order XXXIX, rules 1 and 2, C.P.C. However, respondent No.4 filed separate written statement and written reply. The application of the petitioners filed under Order 39, rules 1 and 2 of C.P.C. was dismissed.

4. The petitioners filed an appeal before learned District Judge Lodhran which was dismissed vide order, dated 1-3-2010, passed by Additional District Judge, Lodhran. Learned counsel contended that the impugned orders passed by both the Courts below are against law and facts of the case. Both the orders passed by two Courts below are based on conjectures and surmises. Learned counsel further contended that that respondent No.4 was not affected adversely by the Nakka in Outlet No.46500/R. He further contended that balance of convenience lies in favour of the petitioners and they were suffering an irreparable loss in case their prayer was not accepted.

5. Heard.

6. Both the Courts below dismissed the application of the petitioners filed under Order 'XXXIX, rules 1 and 2 of C.P.C. Learned counsel for the petitioners contended that learned Additional District Judge in its order dated 1-3-2010 discussed in detail different aspects of the case. The matter of sanctioning of nakka and deciding about its feasibility and looking to the convenience of the irrigators was the basic functions of the Canal Authorities. The work being technical in nature their opinion was to be given weight. The order of D.C.O. is well reasoned and suffers from no illegality. The same 'was impugned through the declaratory civil suit along with application under Order XXXIX, rules 1 and 2 of C.P.C. Both the impugned orders passed by both the Courts below suffer from no illegality or irregularity. There are concurrent findings of fact with regard to the sanctioning of the water course. In civil revision such concurrent findings cannot be disturbed unless there is some jurisdictional error or defect in the orders impugned in the civil revision. Mere assertion that impugned orders suffers from misreading and non-reading of material on record without a positive attempt to substantiate the same was of no legal consequence. Resultantly this civil revision petition is dismissed in limine. A.R.K./G-23/L Petition dismissed.