1998 PLP 1227 (SCMR)

ZIA MAHMOOD MIRZA, J.

This is a petition for leave to appeal against the judgment of the High Court of ,Balochistan dated 13-5-1993 dismissing. the petitioners' revision petition (Civil Revision No. 321 /92) filed against the judgments of the Courts below decreeing the suit of plaintiff/respondent..

2. Facts giving rise to this petition, briefly stated, are that Haji Jehangir respondent No.1 brought a suit against the petitioners in the Court of Qazi, Dalbadin in early 1988 to seek a declaration that his lands comprising Khasra No.854, 853 to 831 were irrigated from 'Gawaz Qadeemi known as Gawaz Mir Muhammad Ibrahim Khan and that none else including the defendants, the present petitioners had any right in the said Gawaz/water channel and, therefore, the petitioners had no lawful right to obstruct the flow of flood water or to divert its course to their lands. The petitioners were accordingly sought.to be permanently restrained from in any manner interfering with the 'Gawaz' in question or irrigating their lands from it.

3. Petitioners contested the suit by filing a written statement wherein they repudiated the claim of the plaintiff/respondent and also raised objections regarding the suit being time-barred and its maintainability.

4. The suit in the first instance was decreed ex parte. On appeal, however, Majlis-e-Shoora, the appellate Court set aside the ex parte decree and remanded the case to the trial Court for decision on merits. This was vide judgment dated 23-2-1991.

5. On remand, the Qazi framed the issues, recorded the evidence, oral as also documentary, adduced by the parties and after appraising the same decreed the suit by judgment dated 23-6-1991 holding that the lands of the plaintiff were irrigated from the 'Gawaz! in dispute and that the defendants had no right therein. Feeling aggrieved, petitioners preferred an appeal before the Majlis-e Shoora. During the pendency of the appeal, the appellate Court passed an order on 23-11-1991 directing the Qazi to record the statements of the parties with an opportunity to them to cross-examine each other; visit the 'spot alongwith Patwari Halqa and the parties and find out the exact location of the lands belonging to the respective parties and the sources of their irrigation; examine the Revenue Record and get a site-plan prepared by the Patwari to be placed on the file and thereafter submit a report alongwith the site plan to the appellate Court within one month. In compliance with this order, the Qazi examined Haji Jehangir, the plaintiff and Noor Muhammad, attorney of the petitioners, carried out the spot inspection as directed and got the requisite site plan prepared which was transmitted to the appellate Court together with other record and the reports of the Qazi and the Patwari. These reports indicated that the 'Gawaz' in dispute passed through Khasra No.854 and it irrigated the plaintiff's Khasra No.853 and downwards upto Khasra No.831 and that the lands of the petitioners comprising Khasra Nos.855, 856, 857 and 858 were irrigated by a separate Gawaz known as 'Zalo Majlis-e-Shoora on consideration of these reports, the site plan and other material/evidence available on the record found that the Gawaz' in dispute which was situated in Khasra No. 854 was exclusively meant for the land of the plaintiff. It irrigated Khasra No. 853 and thereafter, Khasra Nos.831, 832 to

852. It was further found that the lands of the petitioners were irrigated from a separate 'Gawaz'. With these findings, the appeal of the petitioners was dismissed vide judgment dated 12-9-1992. Petitioners then invoked the revisional jurisdiction of the High Court under section 155, C.P.C. but with no better result as the learned Chief Justice dismissed their revision petition by his judgment dated 13-5-1993 holding that "On proper reappraisal of evidence led by parties and above mentioned reports as well as documentary evidence I am fully satisfied that respondent has separate and independent channel for irrigating lands whereas area comprising of Khasra No.855 and upwards appears to be irrigated from Gawaz/water channel 'Zalo'. Evidently concurrent findings of both the Courts below are based on sound reasonings. On fair and evaluation of whole record I am inclined to confirm the conclusions arrived at by both the forums".

6. Learned counsel appearing in support of this petition vehemently contended that in view of the averments made in paras. 7 and 8 of the amended plaint, cause of action arose to the plaintiff way back in 1968 or 1970 but he brought the suit in January, 1988 which was thus barred by time. Learned counsel made a grievance that although the petitioners had raised an objection regarding the limitation but no issue was framed in that behalf. On our query, the learned counsel quite frankly admitted that there was nothing on the record to show that the petitioners ever claimed this, issue before the trial Court although the suit remained pending for more than three years. Petitioners are also not shown to have agitated/pressed this grievance in the High Court. In the circumstances, we do not feel inclined to entertain the grievance regarding non- framing of an issue at this late stage.

7. As regards the merits of the case, suffice it to observe that the controversy between the parties regarding their irrigation rights from the water channel in dispute stands concluded by findings of fact recorded by the Courts below after proper appreciation/evaluation of the evidence/material duly brought on the record. Learned Chief Justice of the High Court also affirmed these findings and rightly held that the concurrent findings of the Courts below unless found to be perverse, materially defective or patently illegal could not be lightly interfered with, in exercise of revisional jurisdiction. The impugned judgment of the learned Chief Justice of the High Court, in our view, proceeds on correct, premises, legal and factual and does not call for any interference by this Court.

8. In view of. what has been said above, we find no merit in this petition which is hereby dismissed with the result that the leave sought by the petitioners is refused. A.A./M-3272/S rave refused.