P L D 1961 W (PLP)

Revision Side No. 344 of 1960‑61, decided on 7th September 1961, District Peshawar. Riwaj Aabpashi‑Interpretation, question of law‑Time and area material factors‑Ignoring one or other‑Material irregu larity‑Revision competent‑Civil Procedure Code (V of‑1908), S. 115 (c). Abdul Latif Khan for Petitioners. Peer Bakhsh for Respondents. This dispute between the parties falls under section 43 (2) (a) of the Minor Canals Act as the main point in issue is about their mutual rights in the water of Katha Doha which passes through the two villages of Doha and Totki, district Peshawar to which the parties belong. The Riwaj Aabpashi prepared at the settle ment of 1926‑27 states the position prevailing at that time as follows:‑ The area situated in village Totki which can be irrigated from Katha Doha consists of Khasra Nos. 1, 3, 5, 6, 8, 9, i.e. 6 fields with a total area of 58 kanals 17 marlas Nehri falling in the category of first class. Further on it is stated:‑ Village Doba holds a joint share in Katha Doha to the extent of 1/3rd and village Totki 2/3rd. The turns are allotted to the two villages in periods of three days and nights by means of drawing lots. The respondents who belong to village Totki which is situated down stream of Katha Doba were irrigating quite a lot of their lands from another Katha known as Katha Jandrat Abdullah Khan. This was washed away three years after the Settlement during a flood in the river Jandi from which these Kathas take off. 1n 1960 the respondents brought a suit claiming that they could irrigate any of their lands within the period of one day and night allotted to them and that this had become necessary as Katha Jandrat Abdullah Khan which formerly irrigated a considerable part of their holding had been washed away and for technical reasons could not be re‑excavated. The Collector decided in their favour primarily‑on the ground that though the respondents wanted to irrigate lands other than those specified in the Riwaj Aabpashi but they wanted to do so within the period allotted to them. In appeal the learned Additional Commissioner has upheld this decision. The defendants Sikandar Muhammad Iqbal etc. have come up in revision. Mr. Pir Bakhsh the learned counsel for the respondent has contended that no interference in revision was tenable as none of the three conditions laid down in section 151 of the C. P. C. were applicable to the case. The determination of the rights of irriga tion as recorded in the Riwaj Aabpashi according to him was a question of fact and that as both the lower Courts had come to a unanimous findings on this question there could be no interference in revision. I find myself unable to accept this contention. The interpretation of Riwaj Aabpashi is a question of law and as already observed the Riwaj specifically mentions the area which can be irrigated and also the time during which it can be irri gated. There are thus two limitations both as regards time and also as regards the area. To interpret this Riwaj so as to leave the area, and to respect only one the two limitations, viz., in respect of time only constitutes a material irregularity in the exercise of jurisdiction. The case is accordingly covered by sub‑clause (c) of section 115 of the C. P. C. The petitioners contend that this view of the Riwaj‑I-Aabpashi has resulted in a miscarriage of justice as they have water mills on Katha Doba and in case the plaintiff‑respondents are allowed to irrigate their lands to increase their area under irrigation by withdrawing water from a place above the situation of the mills it will affect the running of the mills adversely, and that they would not object if the plaintiffs‑respondents utilized water in any way including increase in their irrigated area by withdraw ing it at a point below the mills. Unfortunately this was a position which the plaintiffs‑respondents were not prepared to accept without giving any cogent reasons. As already observed it is a case which falls under the provisions of section 115 (c) of the C. P. C. I would accordingl3f accept the revision petition, set aside' the order passed by the Courts below and direct that the respondents shall only irrigate lands specified in the Riwaj Aabpashi and within the time allotted to them in accordance therewith. S.B Petition accepted.