P L D 1964 W (PLP)

(2) It is correct that Nai carrying rain water to S. Nos. 61 and 98 belonging to the respondent does pass through the land in question ; but that does not appear to be reasonable ground for denying the grant of the disputed piece to the respondent, who possesses no other land for his maintenance. The learned Additional Commissioner then proceeded to grant the piece A in the sketch at page 55 of the file to the respondent, subject to the conditions "that he will not obstruct the natural flow of rain water to the appellant's field,"

3. The land grant policy in the desert portion of Tharparkar District has been conveyed through Circular No. 1258‑R of 1930, dated 14th May 1930. This provides under 1 (c) ibid (a) Under 1 (c) ibid "Abadgar means a small khatedar who cultivates land himself and belongs to a family who are cultiv ators. He differs from a Zamindar who engages heirs for cultivation. Agriculturists who occasionally make some income from labour or sale of ghee or otherwise, but mainly depend on the agriculture for their livelihood, may be classed as abadgars." (b) Under rule 9 "the fields in Thar may be cultivated by makani abadgars on eksali tenure without obtaining previous permission and fields so cultivated for five years continuously by the same person without any adverse claim being established may be confirmed permanently in the name of such cultivators in the sixth year." (c) Under rule 10 that "no appeal should be heard, unless the grounds of objection are amongst the following :‑ (1) that the disputed land is more in his mohag than that of the opposite‑party ; (2) that the cultivation of the land in question prevents the flow of water to the objector's land (though we are warned this is often somewhat abused as an argument) ; (3) that the land is used as grazing ground". All the above three grounds were agitated before the learned Additional Commissioner as in the present revision also.

4. The first point pressed by the learned counsel for the petitioners is that the respondent does not fall within the defini tion of abadgars. I have gone through the report of the Mukhtiarkar dated 22nd March 1961 which shows that the res pondent is a weaver by profession and this is admitted by the respondent's educated nephew, who has been sent by respondent who is said to be an elderly person, to represent him. I have also cross‑examined (the nephew). It is clear to me that since the respondent does not own any land and does not "mainly depend on agriculture for his livelihood", nor is he "an agricul turist", he cannot be classed as an abadgar. He is, therefore, not eligible for this grant.

5. There is also considerable force in the petitioner's second contention that in the Thar, as also in other areas, depending on flow of rain water for cultivation, the question of Pani Dhore is of paramount importance. My learned brother Mr. S. M. Ikram in his judgment in R. O. R. No. 64/59‑60, dated 23rd October 1962 was pleased to accept the revision filed by a petitioner, whose rights to flow of rain water had been obstructed, by a compassionate grant of a nature, similar to that in the present case, with the following observations :‑ "The Collector and the Additional Commissioner decided in favour of the respondent on account of his smaller holding, but ignored the question of Pani Dhore, on the basis of which Deputy Collector decided in favour of the petitioner. The second factor is more important in Desert area, and should have been properly taken into consideration." I find myself in full agreement with these views. The laying down of the conditions by the learned Additional Commissioner that the respondent will not obstruct the natural flow of rain water to the petitioner's fields, is totally unrealistic and unenforce able. It is fraught with possibility of utmost mischief and friction.

6. This being the position I accept the revision, both because the respondent is not proved to be an abadgar and also because the grant of Piece A to him interferes with the Pani Dhore rights of the petitioners. The orders of the authorities below are con sequently set aside and the grant made in the respondent's favour cancelled. K. M. A. Petition accepted.