P L D 1960 (W (PLP)

Section 68 of the Canal and Drainage Act, 1873 (VIII of 1873) makes it clear that before authorising the construction of a channel the Divisional Canal Officer must give a notice of the hearing of the application in that behalf to all persons who were likely to be affected. Sh. Khurshid Ahmad for Appellants. Zaki‑ud‑Din Pal for Respondents. Date of hearing : 3rd October 1960. Ghulam Muhammad and four others, all four of whom are brothers, owned land in Chak No. 92/12‑L in the district of Montgomery. This land was irrigated from outlet No. 33700. Hafiz Ahmad, whose land also was irrigated from the same outlet, felt that a part of his land was not getting the requisite amount of water and, therefore, changed the place of the water channel to suit his own ends. Before doing this, he applied to the Divisional Canal Officer for the sanction of the new channel. His application had not been decided by the Divisional Canal Officer when he made a statement on the 6th of January 1954 that he had constructed the new channel, whereupon the Divisional Canal Officer passed an order on the same day that the construction of the channel was sanctioned. 2. Ghulam Muhammad and the other four appellants instituted a suit on the 22nd of December 1954 in a Civil Court at Montgomery for a declaration to the effect that the channel was unauthorised and, therefore, Hafiz Ahmad and others, who were taking water from it, should be restrained from using it. They, however, withdrew their plaint. On the 15th of April 1955, the five appellants, who were plaintiffs in the first suit, brought another suit and when it was pleaded in Court by the defendants that the channel was constructed under the order of the Divisional Canal Officer dated the 6th of January 1954, they withdrew their suit on the 4th of August 1955 with permission to bring another suit to seek appropriate relief in view of the circumstances brought to their notice. On the 31st of August 1955, the suit, out of which the present appeal arises, was instituted. In this suit the gist of the claim .of the plaintiffs was that the channel constructed by Hafiz Ahmad was unauthorised and there was a further prayer that the order of the Divisional Canal Officer dated the 6th of January 1954 should be vacated. The suit was resisted, but the trial Court decreed it on finding that the construction of the channel by Hafiz Ahmad was unauthorised. The defendants went up in appeal to the Court of the District Judge. Their appeal was accepted on the 27th March 1957 by Sheikh Azam Ali, the then District Judge, Montgomery, who held that the suit fell within Article 11 of the Limitation Act and as it was admittedly lodged more than one year after the Divisional Canal Officer had passed his order on the 6th of January 1954, it could not proceed. Aggrieved by the decision of the District Judge, the five plaintiffs presented the present appeal to this Court. Some time after the appeal had been instituted, Ghulam Muhammad, one of the five plaintiffs, died, but it was about two years after his death that an application was made by his legal representatives td be impleaded in his place as appellants. 3. The learned counsel for the respondents raised a preliminary objection to the hearing of the appeal by saying that as the legal representatives of Ghulam Muhammad, one of the plaintiff-appellants, had not been brought on the record within the time prescribed by law for doing this, the whole appeal had abated and could not proceed. He supported his contention by saying that if the decree against Ghulam Muhammad remains, which it will have to do if his legal representatives are not allowed to have it set aside, and the decree against the other four plaintiffs were to be set aside, there will be two conflicting decrees in the same suit. Whether or not this consideration is enough for throwing out the whole appeal is a question with which I do not consider it necessary to deal in this appeal because it appears to me that the appeal has not abated notwith standing the fact that the legal representatives of Ghulam Muhammad, one of the appellants, were not brought on the record within the time prescribed by law. 4. The law relating to the result that follows on the death of a party to a proceeding is contained in Order XXII of the Code of Civil Procedure the second Rule of which is to the effect that if one of the plaintiffs, where there are more plaintiffs than one, dies, but the suit can be proceeded with by the other plaintiff or plaintiffs, the suit shall proceed. Rule 11 of this Order makes the Rules that precede it in that Order applicable, with necessary modifications, to appeals with the result that if one of the appellants, where there are more appellants than one, dies and the appeal can be proceeded with by the other appellant, or appellants, no abatement of the appeal shall take place. In the present case, each of the plaintiff‑appellants had a right to have the water channel closed and each of them could have brought a separate suit which could have been proceeded with without impleading the other plaintiffs and the suit was instituted by all five of them jointly, not because the right of all of them to lodge the suit was one, but because each of them was allowed by Order I, Rule 1 of the Code of Civil Procedure to join any of the other four or all of them as plaintiffs. If the surviving four appellants had in the beginning wanted to present a separate appeal, they could have done so and the fact that Ghulam Muhammad was not one of the parties to the appeal would not have mattered in the least. If in a suit by any one of the persons affected by it the water channel is held to be unauthorised, the result will be that it will be closed and if it is closed nobody will be able to use it. It was conceded by the learned counsel for the respondents that a position in which the respondents could use the channel as against the legal representatives of Ghulam Muhammad but could not use it as against the other four appellants was not possible because if the channel was unauthorised it will have to be discontinued with the result that it will have to stop and could not be used by the respondents. In view of all this, I am clearly of the opinion that the mere fact that the legal representatives of Ghulam Muhammad, one of the appellants, were not brought on the record within the time prescribed by law does not result in the abatement of the whole appeal and it can be proceeded with by the other four appellants. 5. Coming now to the merits of the appeal, it is clear that the only reason which the learned District Judge gave for non‑suiting the plaintiffs was that in his view the suit was barred by time. The reasoning of the learned District Judge was that as the gravamen of the pleadings in the plaint was that the order of the Divisional Canal Officer passed on the 6th of January 1954 was wrong, the suit for having that order vacated should have been brought within one year of the passing of that order as provided by Article 14 of the Limitation Act. It appears to me that the learned District Judge had not properly considered Article 14 of the Limitation Act. It can hardly be doubted that if a public officer has passed an order which he has no jurisdiction to pass, the order can be overlooked and the suit to get relief against it can be brought within six years of the passing of the order under Article 120 of the Limitation Act. It is further clear that the period of limitation for a suit falling under Article 14 of the said Act will start only from) the date on which the person who wants to seek relief against that order in a Court of law came to know of it, because it cannot be expected that a person should come to Court to get relief against an order of the existence of which he had no knowledge. 6. The order of the Divisional Canal Officer in the present case suffers from two defects. The first is that it cannot be said to be an order under section 68 of the Canal and Drainage Act (Act VIII of 1873), under which provision of law it purports to have been passed. The section makes it clear that a water course can be changed under the order of a Divisional Canal Officer. In the present case, however, one finds that when it was brought to the notice of the Divisional Canal Officer that the applicant before him had constructed the channel at the place where he wanted to construct it, the said officer passed the order the applicant had prayed for. An order of this type cannot be held to be an order passed under section 68 of the Canal and Drainage Act (Act VIII of (873). 7. But even if it be held that notwithstanding the above defect, the order of the Divisional Canal Officer was passed under section 68 of the Canal and Drainage Act (Act VIII of 1873), I am of the view that the suit was not barred by time. The relevant orders of the Divisional Canal Officer, copies of which were placed on the record, make it clear that no notice of the proceedings was served on the four plaintiffs who are now the appellants before me, nor is there anything on the record to show that information about the order of the Divisional Canal Officer was conveyed to the four appellants. As the appellants did not know that the Divisional Canal Officer had passed an order to their prejudice without hearing them, the period of limitation prescribed by Article 14 of the Limitation Act cannot run against the appellants from the date on which the impugned order was passed. The provisions of section 681 of the Canal and Drainage Act (Act VIII of 1873) make it clear) that before authorising the construction of a channel the Divisional Canal Officer must give a notice of the hearing of the application in that behalf to all persons who were likely to be affected., The learned trial Judge found that the notice contemplated by section 68 of the Canal and Drainage Act (Act VIII of 1873) was not served on the four appellants and this finding was affirmed by the learned District Judge. It follows, therefore, that the period of limitation against the plaintiffs will start running from the date on which they learnt of the order of the Divisional Canal Officer. It was said in the plaint that information about the order of the Divisional Canal Officer was given to the plaintiffs in Court on the 26th of July 1955 during the pendency of the former suit and the evidence led by the plaintiffs was to that effect. No evidence which would suffice to rebut the above mentioned evidence was led by the other party and, therefore, it is clear that the period of one year prescribed by Article 14 of the Limitation Act would start running from the 26th of July 1955. The present suit, as I have already mentioned, was instituted on the 31st of August 1955 and was, therefore, clearly within time. Consequently, the decision of the learned District Judge that the suit was barred by limitation was incorrect and is hereby vacated. 8. This brings me to the merits of the case. The narrative of the facts which I have given above would make it clear that the' channel was constructed in an unauthorised manner and the mere fact that the Divisional Canal Officer chose to make his order comply with the illegal act of the person who had dug the unauthorised channel cannot clothe the illegal act with validity. The channel was, therefore, clearly unauthorised, but even if it be assumed that the channel was not unauthorised on account of the fact that the Divisional Canal Officer had passed an order condoning its wrongful construction, the order of the Divisional Canal Officer suffers from the defect that it was passed without that officer complying with the provisions of section 68 of the Canal and Drainage Act (Act VIII of 1873) which had to be complied with before an order of the, kind could be passed. 9. In view of what I have said above, I accept the appeal, vacate the decree passed by the learned District Judge and restore the one passed by the learned trial Judge. The appellants shall have their costs in all the Courts from the respondents. K. M. A. Appeal accepted.