P L D 1958 (W (PLP)

Well‑Owner can dig well in his own land and is not respon sible for diminution of water in pre‑existing well belonging to other person. The defendants in this case considered that the construction of a water wheel started by the plaintiff was harmful to their `Karez' and proceeded to fill up the excavation started. A petition was filed by the plaintiff in the Court of the Qazi of Mustang. The facts found by the Qazi, who inspected the site, are that the defendants' `Karez' had been in existence for a long time, and that it ran through lands belonging to other persons. The plaintiff owned the land situated on the north of the `Karez' where he had started the construction of a water wheel. The `Karez' leads to a tank and the defendants contend that the well which the plaintiff had started to dig, if completed, would draw upon the sub‑soil water percolating from this tank, and would thus diminish the water level of the tank itself. It is not easy to determine on which precise ground the learned Qazi dismissed the contentions of the defendants. He firstly considered that the plaintiff would only have a right to stop the well if he could prove actual loss, that is to say, such diminution of the water in the tank that they were unable to obtain sufficient water there from. He also, however, seems to consider that even if such loss occurred, yet the plaintiff had the right to sink a well since he was sinking it in his own land. In appeal, the Majlis‑e‑Shura stated that the Qazi's judg ment was well considered, and they agreed with it: The law to be applied is the Muslim law since this case pertains to Kalat Division. In the chapter in the Hedaya entitled "Cultivation of Waste Lands," it is stated that if a well has a fountain in it, the space annexed to it is 500 yards, but this space is mentioned as being necessary for the construction of ancillary works. On the other hand it states that some authorities have said that in India, where the soil is soft, a larger extent is required, than in Arabia as otherwise the water of one fountain might transude through the earth and communicate with that of another. That is to say, the reason for the extent is that another well dug neat an existing well might endanger the supply of water of thg,t pre‑existing well. This reasoning, namely, the water supply's diminution is also repeated later m the same chapter where it is said that if .a person digs outside the area he is not responsible foil diminution of water in the pre‑existing well. It is, however, to be noted that these rules occur in the chapter relating to the cultivation of "Waste Lands", and where the treatment of wells starts, it is headed "A space is appro priated to wells dug in waste lands," and the opening sentence is "whoever digs a well in waste land is entitled to a space or piece or piece of land round it". `Waste Lands' are described as ground incapable of yielding advantage either far want of water or any other cause such as prevents tillage. But in the succeeding paragraph the further condition appears to be laid down that ground which is the property of a person is not waste. In the present case it is common ground that the `Karez' runs through land belonging to others, and that the plaintiff's well lay within his own land. I see no reason why I should draw any presumption that when the `Karez' was originally built, it lay through waste land. It may well have been built through the lands of others with their permission. It appears to me that the rules relating to the safeguarding of the interests of a person constructing a well in waste land do not apply to lands not waste, but owned by others. It is true that according to the defendants' case the `Karez' and the tank which they or their predecessors in title have constructed (and the construction of a `Karez' means great expense), are responsible for the water which the plaintiff's . well will use. Therefore, the defendants contend that this case must be distinguished from the case where neighbouring owners each construct wells in their own land, and each draw upon the previously existing sub‑soil supply of water. I do not, think, however, that this distinction is sufficient. The defendants B in effect are claiming a right to the sub‑soil water within 500 yards of the tank, and I cannot find any authority for this claim which interferes with the ordinary rights of ownership of land. Upon this view of the law, the appeal must be dismissed. It is, however, to be noted that there is no express finding that the well was situated in such a position that it would tap sub‑soil water percolating from the tank. The sketch drawn by the Qazi does not indicate this, and gives the distance of the well from the `Karez' itself, and not from the reservoir. Had my finding upon law been different, it would have been necessary to remand the case for fresh finding of facts. The appeal is, therefore, dismissed with costs. K. M. A. Appeal dismissed.