P L D 1972 Rev (PLP)

This is a second appeal against the order dated 7‑11‑70 passed by Additional Commissioner, Multan Division, whereby a private watercourse designed to pass through the appellant's land comprising squares Nos. 41 and 45 in Chak No. 50/KB, Tehsil Vehari, District Multan was sanctioned for the respondents.

2. The facts of the case are that Yara respondent created a Khal from his tube‑well installed in Killa No. 21 of square No. 25 extending irrigation facilities to his land situated in squares Nos. 63 to 67 that passed through squares Nos. 41 and 45 allotted to one Ghulam Hussain the present petitioner under the Well Sinking Scheme. Ghulam Hussain demolished the watercourse. Yara's petition for the restoration of the khal was filed for the reason that he had installed the tube‑well for illicit sale of water for irrigation purposes. The Commissioner however in appeal restored the watercourse and held that the sale of water as such was not unlawful and would rather help Grow More Food Campaign. The Tahsildar was directed to demarcate the watercourse and get it approved by the Collector. Hence this second appeal.

3. On the last date of hearing, with the consent of both the parties, one Mahmood son of Kala caste Waseer of Chak No. 45/KB was appointed as arbitrator to concile the dispute and report. The said arbitrator has reported that the contention of Yara was baseless as the installation proposed khal would aggravate rivalary between the parties as a watercourse already exists in the land of Ghulam Hussain which k being used by Yara also. The plea/stand of Yara for creation of new khal vas reported .by the arbitrator as unjustified, hence liable to rejection. Yara the respondent has subsequently submitted an application that he has lost confidence in the said arbitrator and has requested that the order of his appointment be set aside.

4. I have heard the learned counsel for Yara respondent and the petitioner and the respondent themselves. The learned counsel for the respondent is relying on condition No. 8 of general conditions of allotment of land in colony which provides that where a grant is made for agricultural purposes the Government reserves the right to construct a watercourse or alter an existing watercourse wherever this may be considered desirable by the Collector after consultation with the Divisional Canal Ollic2r. Under the Canal and Drainage Act, 1873 watercourse has been defined under section 3(2) as under :‑ "2. `Watercourse' means any channel which is supplied with water from a canal, but which is not maintained at the cost of the Provincial Government and subsidiary works belonging to any such channel. Under section 3(i) of the same Act, it has been laid down that "Canal" includes all watercourses as defined in second clause of the section. The inference of both the parts of the section 3 of Canal and Drainage Act read with condition No.; that the reference to the watercourse in condition No. 8 is to the one defined under section 3 of the Canal and Drainage Act and not to a private channel for carrying water from a private tube?well to private holdings of the tube‑well owner, his relations or friends etc. In this case the position is that Yara bought in auction 6 kanals in square No. 25 in 1964 and sunk his tube‑well in Killa No. 21 of this square. He has 18 acres of land under occupancy tenancy under section 10 to the south of the tube‑well in squares Nos. 62, 63, 64, 66 and

67. This area is irrigated by, Khadar Branch during Kharif and Yara wants to feed it during rabi with his tube‑well. This land is at a lower level than the tube‑well site and the water can flow easily through gravity to this land after passing through the land of the appellant. It has been stated before me by Yara that he has been feeding from his tube‑well not only his 18 acres in the above square to the south of tube‑well but also supplying water to Rajada son of Nawab, Sardar son of Lakhnera, Balli son of Mahmood, Khan Mohammad son of Bahalan and Azim son of Pathana. It is thus obvious that Yara respondent has been deriving monetary benefits by using the land of Ghulam Hussain, appellant for making his water pass through the appellant's land.

5. The matter in these circumstances is obviously one of private easement which should be settled between the parties by mutual consent, if necessary, by compensating the appellant Ghulam Hussain either in money or kind. This is not a matter in which condition No. 8 of the Colony conditions would be considered to be applicable or in which the Government or its functionaries may interfere with the enjoyment of land by Ghulam Hussain appellant and compel him to allow the construction of the water-course through his land for the benefit of Yara. The appeal is, therefore, accepted and the order of the Additional Commissioner is set aside.

6. Orders may be issued and parties may be informed accordingly. ??????????????????????? Appeal accepted.