2008 PLP 713 (CLC)

KHURSHID ANWAR BHINDER, J.

The petitioners, through the present revision petition have called in question the judgment and decree dated 23-11-2007 passed by the learned Additional District Judge, Rahimyar Khan, whereby he dismissed the appeal filed by the petitioners against the judgment and decree dated 23-5-2007 passed by the learned Civil Judge 1st. Class, Rahimyar Khan dismissing the declaratory suit filed by the petitioners.

2. Briefly stated the facts of the case are that petitioners filed a suit for declaration against the respondents/defendants to the effect that the orders dated 27-11-1998 and 14-10-1998 passed by respondents/defendants Nos.2 and 3 about alteration of impugned outlets were illegal, against law and facts, without notice, mala fide, without lawful authority and hence void, ineffective qua the rights of the plaintiffs and were liable to be cancelled. The case of the petitioners is that they were co-sharers in rights of irrigation of Outlet No.23572/T.R and respondents/defendants Nos.5 and 6 in connivance with defendants Nos.2 to 4 included their landed property measuring 25 acres from Outlet No.10164/R to the said impugned outlet of plaintiffs without giving any notice to them by decreasing the turn of water of the plaintiffs.

3. Defendants Nos.5 and 6 hotly contested the suit by maintaining that the impugned orders had been passed by the Canal Authorities with notice and due care and caution in accordance with law, as such, the suit was liable to be dismissed. Out of the pleadings of parties, the learned trial Court framed the following issues:-- (1) Whether the plaintiffs have no cause of action against the defendants? OPD (2) Whether the suit of the plaintiffs is not proceedable in its present form? OPD (3) Whether the suit of the plaintiffs is false, frivolous and has been filed to harass the defendants Nos.5 and 6 and as such defendants Nos.5 and 6 are entitled to recover special costs? OPD (4) Whether the orders passed by S.E. and DCO dated 27-11-1998 and 14-10-1998 are without notice, illegal, against the facts and inoperative qua the rights of the plaintiffs and are liable to be set aside? OPP (5) Relief.

4. Petitioners examined as many as five witnesses and produced notice to share holders under section 20 of the Canal and Drainage Act as Exh.P.1, site plan Exh.P.2 and copy of order dated 14-10-1998 Exh. P.3. Respondents/defendants produced D. W.1 and D. W.2. The learned trial Court after conclusion of the trial dismissed the suit of the petitioners vide judgment and decree dated 23-5-2007, against which the petitioners filed an appeal before the learned Additional District Judge, Rahimyar Khan who vide judgments and decree dated 23-11-2007, dismissed the appeal, hence this revision petition.

5. Learned counsel for the petitioners has submitted that both the Courts omitted to consider the evidence on record and have illegally dismissed the suit and appeal filed by the petitioners.

6. I have given my anxious thoughts to the submissions of the learned counsel for the petitioners. There is no denying the fact that it is mandatory requirement of law under section 20 of the Canal and Drainage Act that before passing an order by the irrigation authorities i.e., Divisional Canal Officer and the Superintending Engineer for the transfer of outlet from one place to the other, notice to all the share-holders was to be given but it is clear from the statement of Nasrullah, record keeper, who appeared as PW.1, that Muhammad Amjad Patwari had served the notice (Exh.P.1) upon the share holders. Moreover, petitioners despite having an opportunity did not cross-examine D.W.1 and D.W.2 meaning thereby that the statements of the witnesses were understandably admitted. There is sufficient evidence on record particularly the statements of PW-1 and PW-3 that the notices under section 20 of the Canal and Drainage Act were definitely served on all the share-holders before passing the order by the District Canal Officer.

7. In view of the contention raised by the learned counsel, I have examined both the judgments and find that both the Courts below have exhaustively embarked upon the issues involved in the case, rightly appreciated the documentary as well as oral evidence produced by the parties and reached to the proper conclusions, which, to my mind, are not open to exception. Although this Court, in exercise of its revisional jurisdiction, is not required to reappraise the evidence, yet in the interest of justice, I have examined the evidence available on record and find that the conclusions arrived at by both the courts below are not only in accordance with the record of the case but the same are also in consonance with the law on the subject.

8. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. Reliance is placed on Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610.

9. The concurrent findings of facts were recorded by both the courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trail Court. No case of misreading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the courts below has been attributed.

10. It is settled law that concurrent findings of facts, based on evidence, are not liable to be interfered in the exercise of jurisdiction under section 115, C.P.C. Reliance is placed on Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346, Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431, Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647, Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCMR 314, Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329, Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293.

11. Upshot of the above discussion is that the present revision petition is devoid of any merits, thus, the same is dismissed in limine. H.B.T./N-1/L Petition dismissed.