P L D 1959 W (PLP)

Abdul Rahim and Maqsood Jan for Respondent No.

1. This is a revision petition against an order of the Additional Commissioner (Revenue) Peshawar and D.1. Khan, dated 6‑2‑57, upholding the order of the Collector, Bannu, dated 21st January 1956, whereby the claims of the petitioner under section 43 (A) of the Minor Canals Act was dismissed for the distribution of the water of Gandi Zalim in village Zalim Dallu Khel, Tehsil and district Bannu according to Kanal Bandi or in the alternative for the issue of a permanent injunction against the respondent restraining them from providing labour for Tinga from the presidents of other villages. I have heard the petitioner with Mr. Shah Rahman Ansari Advocate and Mr. Abdur Rahim Advocate, assisted by Mr. Maqsood Jan, Advocate for Haji Abdullah Khan respondent. Habib‑ur‑Rehman Khan, Khalil‑ur‑Rehman Khan, Sher Ali Khan father of Asmatullah Khan deceased, Fazal‑ur‑Rehman and Abdur Rehman respondents are present in person. Other res pondents have been served but are not present. Orders against them shall be ex parte. The petitioner had instituted a suit against the respondents for partition of water of Gandi Zalim or in the alternative for a permanent injunction restraining the respondent from using non‑residents for performing Tinga in this village. A number of issues were framed by the Collector, Bannu and he found that according to Riwaj‑e‑Abpashi the respondents were not authorised to make non‑residents to do Tinga and to give them water in turn for use in lands unconnected with Gandi Zalim. As, however, the petitioner could produce no evidence to show that in fact the respondents were using non‑residents to perform Tinga the issue of an injunction was not considered called for. On appeal the learned Additional Commissioner upheld this decision. It has been argued before me that according to the res pondent, Haji Abdullah Khan's own statement before the Collector three or four of his tenants who were living in Kotla Jadid within the limits of village Ismail Khel, were also performing T'inga. There is no shred of evidence, however, any where that these persons were also utilising the irrigation water for their own lands. It is significant that the petitioner never appeared as his own witness in these proceedings and merely his statement in the plaint that non‑residents were watering their own lands is insufficient to prove his case. It has also been said that since several respondents had admitted the petitioner's claim the suit should have been partly decreed. The real contestants, however, are Haji Abdullah Khan and others, who have denied the petitioner's allegations. The respondents, who admitted the claim clearly appear to have been proforma‑respondents. Even these persons did not appear in the witness box, where they could have been cross‑examined regarding their evidence. In view of the concurrent findings of fact by the lower Courts that no non‑residents are proved to have performed the Tinga for securing a share of water for irrigating their lands, I do not propose to interfere in revision. The petition is dismissed. K. M. A. Petition dismissed.