1987 PLP 3049 (MLD)

Respondent No. 2 in person. Kanwar Mohammad Younas for Respondents Nos. 5 and

6. Nemo for the other Respondents. Date of hearing: 9th June, 1987. The petitioners, filed a civil suit challenging the validity of order passed by D.C.O. on 6-6-1985, in respect of Warabandi of Moga No. 25805/TL. Rajbah, IR/2BR. The case of the petitioners was that this moga was sanctioned by S. D. C. O. vide order dated 28-2-1972 therefore, the said order of S.D.C.O. became final and was operative till the year 1985. It was also averred that an application was made by respondents No. 4 to 7 for amendment of said Warabandi which was rejected by S.D.C.O. on 14-5-1985 and on appeal filed by them the D. C .O. passed the impugned order dated 6-6-1985 which according to the petitioners was illegal. Alongwith suit an application for temporary injunction was made which was accepted on 29-7-1985. Against the said order, respondents No. 4 to 7 filed appeal before the lower appellate Court which was accepted and the impugned order was set aside. The revision petition is directed against the said order of lower appellate Court.

2. Learned counsel for the petitioners contended that the lower appellate Court accepted the appeal only on the ground that the order passed by Canal Authorities regarding Warabandi could not have been interfered with through temporary injunction and according to the lower appellate Court it could only be modified or set aside through a decree in the suit. It has been contended that this is absolutely illegal as it has been held in various judgment of this Court that the Civil Court could in a fit case pass interim order regarding the order passed by Canal authorities in respect of Warabandi during the pendency of the suit. This proposition of law has not been denied by the learned counsel for the respondent. Learned counsel for the respondents has argued that even in the orders of Warabandi passed on 26-11-1971 and 28-2-1972 the nakal was given to owners of the land in Square No. 27. and the mistake occurred in the part where this fact could not be recorded and, therefore, impugned order passed on 6-6-1585 has only corrected the said mistake. According to learned counsel for respondents, since 28-2-1972 the owners of land in Square No. 27 have been getting the nakal. This fact has been disputed and denied by the learned counsel for the petitioners. There is no finding by the learned lower appellate Court on this aspect of the case. Learned counsel for the respondents further argued that the lower appellate Court has observed that the impugned order dated 6-6-1985 was legal and valid and no illegality was pointed out therefore the lower appellate Court shall be deemed to have decided the appeal on merits also.

3. I have considered the arguments of both the learned counsel. The very facts asserted by respondent No. 1 and disputed by the petitioner have not been adverted to by the learned lower appellate Court. The perusal of the impugned order shows that the same was passed under the impression that the Civil Court could not interfere with the order of Warabandi through interim order, which has no legal basis. Mere passing reference that no illegality was pointed out, was not judicial disposal of the appeal unless the findings is recorded about the merits of the case of both the parties. The lower appellate Court has failed to exercise jurisdiction vested in it under the law for disposal of the appeal on merits. Under the erroneous view that Warabandi in question could not be interfered with except decree of Court. The impugned order dated 7-1-1986 for the deceasing reasons is hereby set aside. The case is remanded to the lower appellate Court to decide the appeal afresh after considering the merits of the case of both the parties. The parties are directed to appear before him on 2-7-1987. He is also directed to dispose of the appeal before 31-7-1987 positively. Parties are left to bear their own costs. H.B.T./M-459/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.