P L D 1962 (W (PLP)

WAHIDUDDIN AHMAD, J.‑This is a Government appeal in a suit for declaration and permanent injunction filed by the respondents in the District Court of Dada. The learned District Judge, Dadu, by judgment dated the 25th of June 1960, in Suit No. 2 of 1960, has granted a declaration to the respondents that barring an amount of Rs. 2,239‑9‑0 no amount was recoverable from them as water charges.

2. One Muhammad Mureed Khushak, father of respondents 1 to 4, had taken certain lands on lease from the Forest Department in Kalu Bhuri taluka Sehwan, District Dadu, for cultivation. The Mukhtiarkar of Sehwan by notice dated the 12th July 1959, demanded from the father of the respondents Rs. 5,873‑2‑0 for the years 1953‑54, 1954‑55, 1955‑56 and 1957‑58 as water charges under the instructions of E. E. S., Dadu, for irrigating the above‑mentioned lands from the Government canals. The claim of the Government in this behalf was challenged by the respondents after the death of their father inter alia on the grounds (() that no water was supplied to the land leased out, (2) that lease money included the water charges, (3) that there was no separate agreement for payment of water charges, (4) that the demand was illegal in view of the directions issued by the Government that a fixed amount would be recovered in areas newly cultivated under the "Grow More Food Campaign"; and (5) that the deceased made no application for the supply of water to the Canal Department. In this connection, on the 27th of August 1959, the respondents called upon the appellants not to take any steps for the recovery of the above‑mentioned amount and by notice under section 80, C. P. C., threatened the Government to file a suit against them.

3. On the 7th of January 1960, the respondents on the above‑mentioned allegations filed Suit No. 2 of 1960, in the District Court of Dadu, and claimed a declaration that they were not responsible to pay the amount of Rs. 5,873‑2‑0 as water charges demanded by the Mukhtiarkar, Sehwan, and E. E. S., Dadu, and prayed for a permanent injunction. ,

4. The suit was resisted on behalf of the appellants. They pleaded that the demand notice of the Mukhtiarkar, Sehwan, was absolutely valid and maintained that the water was supplied for irrigation purposes to the respondents' father and the charges became due under section 44 of the Sind Irrigation Act, 1879 They further pleaded that the lease amount did not include the water rate and the Forest Department was in no way responsible for the supply of the water. They alleged that under the agree ment of lease with the Forest Department the deceased was responsible for any charges incurred on account of unauthorised use of water from the P. W. D. canal.

5. On the pleadings of the parties the learned subordinate Court struck the following issues:‑ (1) Are allegations made in paras. 3 and 4 of the plaint true. If so what is the effect ? (2) Whether the defendants can recover the water charges from the plaintiffs? (3) Is the suit under‑valued? (4) Is sorest Department necessary party in the suit, if so, what is the effect of its non‑joinder ? (5) What should the decree be ? Out of the above‑mentioned issues only issues Nos. 1 and 2 were pressed. On the evidence led by the parties the learned Sub ordinate Court came to the conclusion that the amount of its. 2,239‑9‑0 only was proved to have been due as water charges from deceased Muhammad Mureed Khushak, the lessee of the land in dispute and granted the respondents a declaration that except the above‑mentioned amount, the appellants were not entitled to claim any amount irons them as water charges. The appellants have challenged this finding in this regular first civil appeal before us.

6. Mr. Ghulam Hussain Abbasi, the learned counsel for the State, has urged before us that the learned Subordinate Court on the evidence produced on the record should have held that the respondents had failed to establish that the claim for water charges for the years 1953‑54, 1954‑55 and 1955‑56 was not recoverable from them. This contention has no force. According to the finding of the learned Subordinate Court, the deceased was responsible for the payment of water charges and the appellants had no responsibility to supply water to the land leased out to him. But the question whether any water was supplied to the land in possession of the deceased and if so in what quantity and for what period was solely within the knowledge of the office of Executive Engineer, Southern Dadu. Similarly, the record showing the area of land cultivated by the deceased was also with the Forest Department concerned. It was thus very easy for the Government Departments to bring on record reliable evidence to establish that the land in possession of the deceased its Kalu Bhuri Forest was cultivated during the above mentioned years and the water for its cultivation was supplied from the P. W. D. canals. But no evidence, worth considera tion, on these questions, was produced before the subordinate Court by the Departments concerned. The appellants, in support of their contention, only examined D. W. 1 Muhammad Ismail, Head Clerk of the Irrigation Department. This witness produced a statement (Exh. 22) showing the cultivation figures of W. C. 2‑L., Daim Branch and Kalu Bhuri for forest land for the year 1953‑54 to 1958‑

59. According to the witness this state ment was prepared by him from the statement sent by the S. D. O., Sehwan. This witness further produced the index map (Exh. 23) of cultivation done by deceased Muhammad Mureed for the above‑mentioned four years. He further produced .a letter of the D. F. O., Larkana (Exh. 24). The learned counsel for the appellants has taken us through these documents, but the statement produced by the witness admittedly is not based on any official record in his possession. D. W. 1 admitted in his cross‑examination that he was not in a position to say whether the entire land leased out to Muhammad Mureed was cultivated every year. Thus he had no personal knowledge about the contents of the documents (Exhs. 23 and 24).

7. The learned Subordinate Court has not accepted the above‑mentioned evidence on the ground that it was not possible to say how these figures were prepared as the S. D. O., who sent this statement to the Executive Engineer has not been examined. He was further not satisfied on what basis the figures in these documents were arrived at. Mr. Abbasi, the learned counsel, has urged that there is a presumption that the records maintained in Government offices are prepared in the ordinary course of business and unless proved to the contrary are correct. But this presumption cannot be applied to the above‑mentioned documents produced on behalf of the Department. None of these documents was prepared from official records. The persons who were in charge to prepare the official records were also not examined. In these circumstances the learned subordinate Court was perfectly justified in not relying on the documents produced on behalf of the Department.

8. It was next urged by the appellant's counsel that the case set up by the respondents in the notice under section 80, C. P. C., was quite different from the allegations made in the plaint. It was urged by the learned counsel that in section 80 notice the respondents did not allege that the land in question was not cultivated during the above‑mentioned period or that no water was supplied to their land. It cannot, however, be forgotten that the respondents are the legal representatives of deceased Muhammad Mureed. Except Muhammad Rajab, all the other respondents are minors. None of them, therefore, could have any personal knowledge whether, the land in dispute was cultivated during the alleged period of any water was supplied to it. It was, therefore, open .to them, on gathering further information, to allege in the plaint that no water was supplied to the land in possession of their father and it was also not cultivated during the period alleged by the Government. It is therefore, not one of those cases where an aggrieved party had knowledge of certain facts and failed to disclose them at the earliest possible opportunity. In these circumstances no adverse inference could be drawn against the respondents on the points under consideration.

9. It will be noticed that the learned subordinate Court's finding is that the lease amount did not include the water charges and that under the agreement of lease deceased Muhammad Mureed was liable to pay for the water charges. P. W. 1 Muhammad Rajab in his statement admitted that the land in possession of his father was cultivated during the year 1957‑5.8 and water for cultivating it was obtained from the neighbouring Zamindars. On this admission the learned subordinate Court very correctly held that there was some basis for the claim of the appellants for water charges for the year 1957‑58 and rejected the respondents' plea that they were not liable to meet the demand for this period. Mr. Abbasi contended that this tacit admission should also be applied in respect of the claim of water charges for the rest of the years. There is no admission, either express or implied, in the statement of P. W. Muhammad Rajab for the other years and it cannot be extended to the rest of the claim. It is, therefore, perfectly clear to us that the learned subordinate Court in the circumstances of the present case was perfectly justified in holding that the appellants failed to establish that the land in possession of deceased Muhammad Mureed was cultivated during the years 1953‑54, 1954‑55 and 1955‑56.

10. Lastly, it was argued on behalf of the appellants that the Civil Court had no jurisdiction to entertain the suit for declaration and injunction as it was barred under section 11 of the Sind Revenue Jurisdiction Act, 1876. This contention also has no force. Section 11 of the above‑mentioned enactment is in the following terms: "No Civil Court shall entertain any suit against the Crown on account of any act or omission of any Revenue Officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present." A perusal of this section will bear out that it is applicable only in those cases where any act or omission of any Revenue Officer could be challenged in appeal. The notice of demand (Exh. 19) was issued under section 44 of the Sind Irrigation Act, 1879. No appeal is provided against the orders passed by a Canal Officer under the above‑mentioned section. This is quite clear from section 67 of the above‑mentioned enactment. It was for this reason that no plea of jurisdiction was raised in the written statement on behalf of the appellants.

11. No other point was urged before us. There is no force in the contention raised on behalf of the Government in this appeal. Accordingly it is dismissed with costs. A. H. Appeal dismissed.