1983 PLP 96 (CLC)

None has appeared to prosecute this appeal on behalf of the respondents despite service ex parse against them.

2. This appeal under section 100, C.P.C. calls in question the legality of the judgment and decree dated 2‑7‑1969 of the learned District Judge, Sargodha whereby he accepted the appeal and reversed the judgment and decree dated 14‑2‑1969 of the learned Civil Judge, Jauharabad, and dismissed the suit of the present appellants with costs.

3. The relevant facts of the case are that the appellant/plaintiff instituted a suit for declaration to the effect that be is entitled to irrigate his land as shareholder comprising Khasra No. 978 of Khewat No. 196 as per Jamabandi for the year 1962‑63 from Khasra Nos. 977, 979, 978 and 978/1 situated in Mauza Daiewal, Tehsil Khusbab, District Sargodha and that the respondents had no right to obstruct the flow of water in any manner with consequential relief for the demolition of Banna raised to obstruct the flow of water.

4. The suit was contested by the respondents. Out of the pleadings of the parties following issues were framed :‑ (1) Whether the suit is bad due to non‑joinder of necessary parties ? If so, with what effect ? (2) Whether the suit is maintainable in its present form ? (3) Whether the suit is properly valued for the purposes of court‑fee and jurisdiction ? (4) Whether the suit is in time ? (5) Whether the plaintiff is entitled to irrigate his land from the 'Nala' in question ? (6) Whether the defendants have obstructed the flow of water to the land of the plaintiff by constructing a band in the Nala in dispute about one year back ? (7) Whether the defendants are entitled to special costs under section 35‑A of the C P.C. ?

8. Relief. The learned trial Court decreed the suit on 14‑2‑1969 but the decree was reversed in appeal as aforesaid.

5. Learned counsel for the appellant contended that the pleadings of the parties and the evidence on record was misread by the learned first appellate Court and the well‑reasoned judgment of the trial Court was incorrectly reversed. It was contended that the appellant was successor‑in‑interest of Sultan, the original owner of the land in dispute, who was co‑sharer with the respondents, as such, he has been irrigating land from the same source which could not have been obstructed by the defendants. It was further argued that the evidence on the record established that the "Banns" in dispute was raised to obstruct the irrigation of the land through the "Mali" which existed long before the creation of the obstruction in the flow of water from Kassi Gorahi. He referred to document (Exh. P/5) which is copy of "Wajabul Arz" to show that the land in dispute was irrigated through Kassi Gorahi. It was next submitted that the copies of jamabandis (Exh. P/6 to Exh. P 8) proved that the irrigation of the disputed land has always been done through "Nala" and not by "Rohar" i.e. flow of surface water. 1t was lastly contended that the thesis propounded by the first appellate Court that the holders of upper tenements can deprive the holders of lower tenements irrigation facilities at their will was beyond the scope of pleadings and evidence on record.

6. I have considered the contention raised by the learned counsel for the appellant and have gone through the evidence on record with his assistance. The respondents in the written statement did not deny that the land in dispute was not being irrigated by the water flowing from "Kassi Gorahi" Jebana while appearing as D. W. 3 had admitted in cross‑examination that the land in dispute was irriga?ted from Nala Gorahi. He also admitted that "Banns" existed between the land belonging to the appellant and that of the respondents and it was on that account that the .land of the appellant was rendered unirrigated. The perusal of the jamabandis Exh. P/F to Exh. P/8) clearly shows that the land in dispute was irrigated through "Nala." The document (Exh. P/5) which is copy of "Wajabul Arz" also established that the land in dispute was to be irrigated from Kassi Gorahi. The mere fact that Kassi Goraht ended at some distance from the land in dispute would not prove that there existed no "Nali" down stream Kassi Gorahi up to the land in dispute. The construction of "Banns" undertaken by respondent indicated that the water which flowed from Kassi Gorahi downstream to the land in dispute was obstructed on the way by raising "Banns". The respondents, therefore, could not raise obstruction to deprive the appellant to irrigate his land from "Kassi Gorahi". Sultan. his predecessor and a co‑sharer had been irrigating the land from water flowed through "Kassi Gorahi". The assumption of the learned first appellate Court that the water which flowed from "Kassi Gorahi" and passed through the lands of the parties because surface water is not supported from evidence on record. The appreciation of evidence in its correct perspective rather indicates that there existed "Nali" through the lands of the parties which served a source of irrigation which was blocked by construction of "Banns". The land in dispute originally belonged to Sultan which subsequently was acquired by the appellant in the exercise of the right of his pre‑emption. The appellant had stepped into his shoes and therefore, he was entitled to enjoy the means of irrigation of the land available to his predecessor. In the instant case, however, it appears that the appellant acquired the land in dispute contrary to the wishes of the respondents by instituting a suit against Mst. Bagh Bhari wife of Eidhi respondent. In order to avenge themselves, the respondents. therefore, obstructed the flow of water irrigating the land of the appellant.

7. For the foregoing reasons this appeal is accepted, impugned judgment of the learned District Judge is set aside and that of the learned trial Court restored.

8. As none has come to contest this appeal there shall be no‑order as to costs. M. Y. H. ???????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.