2006 PLP 3117 (YLR)

SHEIKH AZMAT SAEED, J.--This civil revision is directed against the order dated 28-2-2005, whereby the learned Additional District Judge, Khushab by accepting the appeal preferred by Abdul Rashid respondent No.6 dismissed petitioner's application for temporary injunction granted by the Civil Judge, Khushab by means of order dated 19-10-2004.

2. Facts in brief giving rise to the filing of this civil revision are that petitioner filed a declaratory suit challenging the order dated 2-5-2000 against respondents 2 to 6 claiming to be the owner in possession of land bearing rectangle No.131 Killa No.1-2-10 located at Chak No.5/TDA District Khushab. It was averred that the land was being irrigated from Moga No.8820-R out of the link channel Mahajar Branch in accordance with Wara Bandi sanctioned on 18-7-2000. As the land of the petitioner was situated at the tail end, the petitioner has been using the Nigal Water. But the Canal Authorities in collusion with respondents Abdul Majeed and Shah Muhammad, manoeuvred to approve a new Wara Bandi vide order, dated 2-5-2002, whereby the petitioner was deprived of the use of Nigal Water. The petitioner challenged order dated 2-5-2000 and sought the restoration of the previous Wara Bandi.

3. Respondents entered appearance and contested the suit as also the grant of temporary injunction. The trial Court vide order dated 19-10-2004 accepted the application of the petitioner and granted temporary injunction in her favour, as a consequence whereof, the impugned Wara Bandi was not put into operation. Respondent No.6 filed an appeal which was accepted by way of impugned order.

4. Counsel for the parties have been heard and the record appended with this petition perused. The primary dispute inter se the parties is the land of which party hereto in fact situates on the tail of the watercourse, so as to be entitled to Nigal Water. It appears from the record that the trial Court has appointed a local commission for carrying out spot inspection who submitted his report indicating the map, holding the petitioner to be at the tail end of the watercourse, and the trial Court relying thereon held that the petitioner had a prima facie case and thus granted interim relief. And on appeal, the first appellate Court observed that the map prepared by Local Commission shows that Killa No.1 was not being irrigated on account of the houses built thereon and is now Gher Mumkin Abadi, while Killa No.2 was still being irrigated and locates at tail end, hence, the petitioner was entitled to get the Nigal. Whereas, the second map prepared by Muhammad Afzal Ziladar Canal Department reveals that both Kila Nos.l and 2 were Gher Mumkin Abadi, and only Killa No.10 was being irrigated which is not located at the tail end. Killa Nos.8 and 9 owned by respondents now situated at the tail end. Killa Nos.1 and 2 were no more being cultivated, hence Killa No.9 owned by respondents was now at the tail end.

5. This tentative finding by the appellate Court is seriously controverted by the learned counsel for the petitioner.

6. It is clear and obvious from the above that real matter in controversy would be whether Killa No.2 is still being irrigated. If the answer is in affirmative, then obviously, petitioner would be at the tail end of watercourse and thus entitled to Nigal water. Such is the report of the Local Commission appointed in the case. On the other hand, report of the Ziladar suggests that Killa No.2 owned by the petitioner is entirely Gher Mumkin Abadi and is not being irrigated currently. The first appellate Court failed to take into account that impugned Wara Bandi is based on the said report of Zila Dar, which is subject-matter of lis.

7. The actual matter in controversy between the parties will have to be decided after recording evidence of the parties and considering authenticity of the reports of the local commission and Zila Dar who remain to be subjected to cross-examination. Thus, it would not be safe to hold that the petitioner does not have a prima facie case. It would therefore, be appropriate to maintain the status quo till the final adjudication of the lis at hand. The order impugned of the appellate Court obviously is not sustainable, and is therefore, set aside with the consequence that order of the trial Court granting temporary injunction in favour of the petitioner shall stand restored with direction that trial Court shall finally adjudicate the entire issue expeditiously and preferably within three months from the receipt of this order. Disposed of in the terms reflected ibid. H.B.T./R-43/L Revision allowed.