P L D 1961 (W (PLP)

(2) Whether the order of the Divisional Canal Officer, dated the 25th September 1957, was null, void and inoperative for reasons stated in paragraph 6 of the plaint ?

4. On the first issue the finding of the trial Court was that the Civil Court had jurisdiction to try the suit, on the second issue the Court found that the suit was within time, and on the third issue the finding was that the Divisional Canal Officer's order was null and void. As a result of these findings the appellants' suit was decreed, with costs, against the respondents.

5. Respondent No. 1 Abdul Latif Khan, filed an appeal against the judgment and decree of the trial Court, and the learned District Judge, by means of his judgment dated the 7th December 1959, reversed the findings of the trial Court and dismissed the appellants' suit with cost. The decision of the learned District Judge was based on the grounds that the order dated the 25th September 1957, was only a re‑affirmation of the order which had been passed in the year 1935 and that that order was not challenged by the appellants, within the period of one year, as required by Article 14 of the Limitation Act. The Court also found that although the order passed in the year 1935 was not available, from the documentary evidence on the record, it had been established that such an order was passed and that as that order was in accordance with law, the order passed in the year 1957 could not be challenged by the appellants. The plaintiffs have now come up, in appeal, to this Court and pray that the judgment and decree of the lower Appellate Court be set aside and those of the trial Court restored.

6. The main contention of the learned counsel for the appel lants was‑ that no order, with regard to the construction of a new watercourse, through Square No. 66, was passed in the year 1935, not had it been proved that such an order, if any, was in accor dance with law. On the question of limitation the appellants' contention was that as the order, if any, passed in the year 1935 had not been acted upon, and as the watercourse running through Square No. 82 continued to be used until the date of the appellants' suit, afresh cause of action was furnished to them when the Divisional Canal Officer passed the order dated 25th September 1957, and as the suit was filed within a year from that date, it was not barred by time under Article' 14 of the Limitation Act. The respondents' counsel, on the other hand, contended that the Divisional Canal, Officer had passed an order in the year 1935, for construction. of a new watercourse through Square No. 66, that in pursuance of that order a watercourse was actually constructed and that the order passed in the‑year 1957.was only a reaffirmation of the previous order, as found by the learned District Judge and, therefore, the validity of the last‑mentioned order could not be challenged by the appellants. It was contended further that as an order was passed in the year 1935, the suit was rightly held to be time‑barred under Article 14 of the Limitation Act because there being no‑ fresh order in the year 1957, the period of limitation for the filing of the suit could not be counted from the date of the second order.

7. As neither the original order said to have been passed in the year 1935, nor its copy, was placed on the record, the first point which requires decision is whether any such order was in fact, passed. If the answer to this question is found to be in the affirmative, the second question that would require decision would be whether that order was in accordance with law. The third point, requiring decision, would be whether the order dated the 25th September 1957, was a re‑affirmation of the first order, or whether it was a new order and furnished a fresh cause of action to the appellants for the filing of a suit.

8. To establish that an order for the construction of a new watercourse through Square No. 66, and for the closure of the watercourse, running through Square No. 82, was passed in the year 1935, the respondents produced copies , of two mutation orders Nos. 109 and 112 (Exhs. D. 3 and D. 1) along with copies of relevant entries of the Field Book (Exhs. D. 4 and D. 2). From a perusal of these documents it appears that, in accordance with information received from the Canal Department, on the basis of an order dated the 9th July 1935, alterations were made in the area of killas Nos. 21 to 25 of Square. No. 66 and of killas Nos. 1 to 5 of Square No.

82. As the new watercourse was to be con structed through killas Nos. 21 to 25 of Square No. 66, the area of these Killas was reduced from 43 kanals to 381 kanals and, on account of closure of the watercourse, which was running through Killas Nos. 1 to 5 of Square No. 82, their area was increased from 35 kanals to 40 kanals. In the jamabandis of the years 1941‑42, 1945‑46 'and 1950‑51 the increase and decrease in the areas of Squares Nos. 82 and 66 made in the mutation orders Nos. 109 and 112 were recorded. On the basis of these entries, the learned counsel for the respondents contended that the lower Appellate, Court was justified in presuming, firstly, that an order was passed on the 9th July 1935, for the construction of a new watercourse through Square No. 66 and for the closure of the old watercourse running through Square No. 82 and, secondly, that that order was implemented because it was given effect to in the revenue records. 8‑A. After hearing part of the arguments in this case; in my order dated the 25th January 1961, I expressed the opinion that for completely and effectually deciding this case it was necessary to send for the relevant records of the Canal Department. The Divisional Canal Officer was, therefore, directed to. produce all the records. relating to these watercourses, and, in parti cular, the record ‑of the case relating to the order dated the 9th July 1935. In obedience to this order, one Mr. Muhammad Siddiq, a Clerk of the office of the Divisional Canal Officer (Executive Engineer), appeared in this Court on the 7th March 1961, and deposed that the only record available in their office, relating to the watercourses running through Squares Nos. 82 and 66, was record No. 3 820, which had already been submitted to this Court. He stated further that that record did not relate' to the watercourses running through Square No. 82 or Square No. 66, but related to some other water‑courses. On being cross‑examined, the witness modified the first part of his, statement and added that the watercouse marked by letters A, B and C on the plan which was a part of record No. 3820, was the watercourse which ran through Square No.

82. The witness had no personal knowledge about any of the facts of this case, nor could he identify the writings and signatures of the Divisional Canal Officer and the Ziledar who had passed different orders and made various reports. A perusal of the report dated the 14th March 1935, referred to in the evidence of this witness, and the final order dated the 7th June 1935, passed by the Divisional Canal Officer, makes it quite clear that this record did not relate to any watercourse running through Square No. 82 or 66 and that it related to some other watercourses which were to be constructed, or were running, through .Squares Nos. 2, 30, 41, 50, 51 and 72 to

76. There is no order dated the 9th July 1935, on the record of this case relating to the construction of a watercourse through Square No. 66, nor for the closure of the watercourse running through Square No.

82. There is, no doubt, a note dated the 9th July 1935, on that record, ;f which is only to the effect that a plan had been forwarded to the Colony Department and the file was being consigned to the record room.

2. The original order dated the 9th July 1935, is not traceable and if no intimation, about, such an order, along with detailed plans of the old and the new watercourses had been received from the Canal Department by the Colony Office, it could have been argued that no such . order was passed by the Divisional Canal Officer. A perusal of the two mutation orders Nos. 109 and 112 (copies Exbs. D. 3 and D. 1) and the two plans (copies Exhs. D. 4 and D. 2) for increase of the area of killas Nos. 1 to 5 of Square No. 82 and corresponding decrease of the area of killas, Nos. 21 to 25 of Square No. 66 leaves no doubt that such an order must have been passed by the Divisional Canal Officer. If that had not been so, no intimation would have been received from the Canal Department about such an order, nor would they have taken the trouble of preparing detailed plans for increasing and decreasing the areas of the two squares.

10. The learned counsel for the appellants contended that though this Court can presume, in ‑accordance with illustration (e) of section 114 of the Evidence Act that the formalities required by law in passing an order in the year 1935 were observed by the Divisional Canal Officer, there cannot be any presumption that an order was, in fact, passed and, therefore, it was the duty of those, who rely on such an order, to prove its existence. In support of his contention the learned counsel referred to the following authorities :‑ Narendra Lal Khan v. Jogi Hari (32 Cal. 1107) and Jagdeo Narain Singh and others v. Bulaki Gope and others (63 I C 226). In the first‑mentioned case it was held, by Woodroffe, J. that the meaning of section 114 (e) of the Evidence Act was that if an official act was proved to have been done it can be presumed to have been regularly done, but no presumption could be raised that an act was done of which there was no evidence and the proof of which was essential to the plaintiff's case. In the second‑mentioned authority it was held that while a Court .may presume that official acts were performed regularly, it cannot be presumed that they were performed correctly as well and, therefore, the identity of the persons who are alleged to have made certain admissions in batwara proceedings cannot be presumed, but must be established by the party which relies upon their admissions. The learned counsel also referred to a case of the Lahore High Court as Mst. Jawai v. Emperor(A I R 1942 Lah. 214), in which it was held that a presumption under section 114 of the Evidence Act was only an optional pre sumption and the Court is not bound to make it. It was held further that the counter‑illustration (e) to section 114 itself indicated a case in which the Court would not draw it, i.e., where there are some exceptional circumstances surrounding the doing of the act.

11. If no detailed plans had been received by the Colony office from the Canal Department and if, on the basis of those plans, changes, in the areas of the various killas of Squares Nos. 66 and 82, had not been made in the revenue records, it would have been difficult to draw a presumption that any such order was passed in the year 1935, but as it is, I think the lower Appellate Court was justified in presuming that an order for the con struction of a new watercourse through Square No. 66 and for the closure of the old watercourse running through Square No. 82, was passed on the 9th July 1935. In the circumstances of this particular case the views expressed in the authorities relied upon by the appellants' counsel have no application.

12. Having held that the Divisional Canal Officer had passed an order on the 9th July 1935, with regard to the two watercourses, the decision of the second question, namely, as to whether that order was in accordance with law, does not present any difficulty. As the original record of the case in which the order was passed is missing, it is not possible to come to a definite conclusion that the formalities of law were complied with by the Divisional Canal Officer, when the order in question was passed. Illustration (e) to section 114 of the Evidence Act, however, comes to the aid of the respondent and it would be reasonable to presume that when the order in question was passed, all the requirements of law were fulfilled, and as nothing was placed on the record to rebut that presumption, the validity of the order passed in the year 1935 cannot be challenged by the appellants.

13. The third point, namely, whether the order dated the 25th September 1957, was a re‑affirmation of the first order, or whether it was a new order and furnished a fresh cause of action to the appellants, is not so easy to answer and, therefore, would need a somewhat lengthy discussion. So far as the question of fact is concerned, the contention of the learned, counsel for the respondent was that, after the Divisional Canal Officer had passed the order in question , in the year 1935; it was acted upon, in the sense that a new watercourse was constructed in Square No. 66 and the old watercourse running through Square No. 82 was closed. The evidence on the record, however, does not support this con tention, because the indications are that the order passed in the year 1935 remained a dead letter and was never acted upon. A reference to the order dated the 25th September 1957, of which Exh. P.,,J is a copy, would show that Abdul Latif Khan res pondent gave an application to the Divisional Canal Officer, in which he bad alleged that a watercourse was running through Killas Nos. 1 to 5 of Square No 82, though the `sanctioned' watercourse should have been in Killas Nos. 21 to 25 of Square No.

66. The same order indicates that Abdul Latif Khan gave a second application, in which be prayed that the watercourse, which was running through Killas Nos. 1 to 5 of Square No. 82, should be closed and an order be passed for the opening of a watercourse through Killas Nos. 21 to 25 of Square No.

66. The admissions made by Abdul Latif Khan in the .two applications, referred to in the order dated the 25th September 1957, go a long way in proving that in that year no "sanctioned" watercourse was actually running through Killas Nos. 21 to 25 of Square No. 66 and that the old watercourse, which existed in Killas Nos. I to 5 of Square No. 82, had not been dismantled and was in use at that time. If, as was being contended during the course of arguments by the respondents' counsel, in the year 1957, there was a "sanctioned" watercourse running through Killas Nos. 21 to 25 of Square No. 66 and no watercourse existed in Killas Nos. 1 to 5 of Square No. 82, Abdul Latif Khan would not have thought it necessary to approach the Divisional Canal Officer, with the request that the watercourse of Square No. 82 be closed and that of Square No. 66 be opened. This conclusion of mine is supported by the evidence of Abdur Rashid Patwari (D. W. 3) who deposed that during the period he remained in Chak No. 24, a watercourse was running through Killas Nos. 1 to 5 of Square No.

82. He was not questioned as to whether there was also a watercourse in Killas Nos. 21 to 25 of Square No. 66, but as a watercourse did exist in Square No. 82, the inference is that no such watercourse existed in Square No.

66. Muhammad Munir Patwari (D. W. 2) did not support the evidence of Abdur Rashid Patwari (D. W. 3) and deposed that though, in the revenue records, it was shown that there was a watercourse in Square No 82, in fact, that water course was running through Square No.

66. In my opinion, the statement of this witness, being in direct contradiction of the admissions made by Abdul Latif Khan in his applications addressed to the Divisional Canal Officer, cannot have any value, especially when he did not support it by producing the relevant records.

14. The learned counsel for the respondents contended, in a half‑hearten manner; that after the Divisional Canal Officer had passed an order in the year' 1935, for the construction of a new watercourse through Square No. 66 and for the closure of the old watercourse which was running through Square No. 82, the old watercourse .was closed and the new one was constructed, but the appellants took the law into their own hands and in or about the year 1955, re‑constructed the watercourse which was running through Square No. 82 and attempted to close the watercourse which had been constructed in Square No. 66 and it was for this reason that Abdul Latif Khan had to approach the Divisional Canal Officer for obtaining suitable orders. There is nothing on the record, except the statement of Abdul Latif khan respondent, as D. W. 5, to indicate that any such action was taken by the opposite party. This respondent, no doubt, deposed, as a witness in the trial Court, that the appellants, during his absence from the village, had re‑constructed the old watercourse' which was running through Square No. 82 and dismantled the watercourse which was running through Killas Nos. 21 to 25 of Square No. 66, but he did not specify the date or the year when this was‑ done. He also admitted that no report was lodged by him, at the police' station, about this occurrence, but added that he complained to the Canal Department that the appellants had, forcibly, constructed a watercourse through his land: The original application said to have been given by this witness to the Canal Department was not produced, nor was the omission explained. This respondent also did not produce any other witness to corroborate his testimony, on the other hand, in paragraph 6 of his written statement, he had alleged that he wished to close the watercourse, which he had constructed in Square No. 82 about two years earlier, with per mission of the Canal authorities. If there had been any truth in the allegation made by this respondent when he appeared as a witness in the Court, he would have come out with similar allegation when the written statement was filed. At that stage his version was that the watercourse which existed in Square N. 82 had been constructed by him and not by the appellants. It was only at the stage of evidence that he gave a twist to the case and made the allegation that 4he watercourse which was in existence fn the year 1957, in Square No. 82, had been constructed forcibly by the appellants. In these circumstances, much value cannot be attached to the testimony of this witness and it will have to be held that although an order was passed in the year 1935, by the Divisional Canal Officer, for the closing of the watercourse which was running through Square No. 82 and for the construction of a new watercourse through Square No. 66, that order was not implemented and the old watercourse running through Square No. 82 continued to exist until the 25th September 1957.

15. The lower Appellate Court, in coming to the conclusion that the order passed on the 25th September 1957, was not an order directing the construction of a new watercourse through Square No. 66, but was only a re‑affirmation of the first order which had been passed in the year 1935, overlooked the provisions of sections 21 to 30 of the Canal and Drainage Act, 1873. According to these provisions of law, any person desiring con struction of a new watercourse has to apply, in writing, to the Divisional Canal Officer, who is required to publish a notice forthwith in the village through which the watercourse is proposed to be taken and also to give a notice to the Collector of the dis trict. All persons interested in the land, or the watercourse, to which such a notice refers, can, within thirty days from the date of publication of the notice, apply to the Collector by petition, stating their objections to the construction of the watercourse. If no objections are filed, or if the objections are overruled by the Collector, he, after giving notice to the Divisional Canal Officer, can pass an order under section 25 of the Act, placing the appli cant in occupation of the land marked out for the construction of the watercourse. If the Canal Officer disagrees with the Collector, the matter is ‑to be referred, under section 27 of the Act, to the Commissioner for decision, whose decision is final. When any applicant is placed in occupation of land, on which a watercourse is to be constructed; he is required to fulfil certain conditions prescribed by section 29 of the Act. One of these conditions is that the proposed watercourse is to be completed to the satisfaction of the Divisional Canal Officer, within one year after the applicant is placed in occupation of the land. In accordance with the con cluding portion of section 29 of the Act, if any of the rules and conditions, prescribed in this section, are not complied with, or the watercourse is disused., for three years continuously, the right of the applicant to occupy the land, or the watercourse, ceases absolutely. This part of section 29 is worded as follows :‑ "If any of the rules and conditions prescribed by this section are not complied with, or if any watercourse constructed or transferred under this Act is disused for three years continuously , the right of the applicant, or of his representative in interest, to occupy such land or watercourse shall cease absolutely." As, in my opinion, in the present case, the watercourse was not constructed within a period of one year, as required by clause "Third" of section 29 of the Canal and Drainage Act and as, on the respondents' own showing, the watercourse, if any, was not used for several years, the respondents' right to occupy tree land on which the watercourse had been or was to be constructed came to an end. It was, therefore, obligatory for the Divisional Canal Officer, when he was moved in the year 1957, to pass a fresh order in accordance .with law and not to just re‑affirm the previous order which had ceased to exist. The order dated the 25th September 1957, of which Exh. P. 1 is a copy, does not indicate that the formalities required by sections 21 to 29 of the Act were fulfilled. Moreover, in accordance with section 22 of the said Act, the Divisional Canal Officer is not competent to pass any order for the construction of a new watercourse. He is required, by law, to publish a notice about the proposed watercourse in the village and also to give a notice .to the Collector of the district. It is only the Collector of the district who can, after hearing the objections, if any, pass an order under section 25 of the Act, directing that the applicant be placed in occupation of land on which the water course is to be constructed. If there is any difference of opinion, between the Divisional Canal Officer and the Collector, the matter is to be referred, for final decision, to the Commissioner. Under . no circumstances can the Divisional Canal Officer himself pass an order, for the construction of the watercourse, and for the occupa tion of any land over which that watercourse is to be constructed. Looked at from this point of view, the Divisional Canal Officer's order dated the 25th September 1957, has no legal force and, on its basis, the respondents could not claim possession of the land over which the watercourse was to be constructed, nor could they compel the appellants to construct a watercourse through Square No. 66 and to close the watercourse which was running through Square No. 82.

16. The learned counsel for the respondents contended that as the appellants had not paid the price of that portion of the land of Square No. 66 over which the watercourse was to be constructed they cannot have any legitimate grievance against the order of the Divisional Canal Officer. No doubt, under section 21 of the Canal and Drainage Act, _ 1873, the land on which a watercourse is to be constructed is to be acquired from the "owners", but under section 24 of the Act any person interested in the land, or the watercourse, to which the notice refers, has a right to file objections. Admittedly, the appellants did not pay the price of E the land over which the proposed watercourse was to be constructed but being occupancy tenants of Square No. 66 in the year' 1935 they had a right to object to the construction of a watercourse through that square and as such, could object to the validity of the order passed by the Divisional Canal Officer.

17. With regard to the question of limitation much need not be said. The learned counsel for the appellants made a reference to a number of authorities to support the proposition that a fresh, cause of action for the filing of the suit was furnished, after the Divisional Canal Officer had passed the order dated the 25th Sep tember 1957. If my finding had been that‑the order passed in the year 1957 was a re‑affirmation of the order passed in the year 1935, it could have been argued that the appellants' suit had become time -barred, because they did not challenge the first‑mentioned order, within the period of one year, as provided by Article 14 of the Limitation Act, but as my finding is that the order passed in the year 1935 came to an end, by lapse of time and also on account of disuse of the watercourse, and as the appellants filed the suit within a year of the date of the second order, that suit was within time, it is, therefore, not necessary to refer to the various authori ties relied upon by the learned counsel for the appellants.

18. For reasons given above, I accept this appeal, set aside the judgment and decree of the lower Appellate Court and restore those of the trial Court. The appellants will also get costs of this appeal from the opposite‑party. K. B. A. Appeal accepted.