2007 PLP 1388 (YLR)

SYED ASGHAR HAIDER, J.

The petitioner is aggrieved of the judgment and decree dated 25-7-2006 passed by the Additional District Judge, Okara whereby appeal was allowed and the judgment and decree dated 18-10-2005 passed by Civil Judge, Okara was set aside and the suit of the plaintiff/petitioner dismissed.

2. The plaintiff/petitioner filed a suit for declaration etc. challenging the orders dated 14-3-2001 and 1-10-2001 passed under the Canal and Drainage Act, 1873. The plaintiff/petitioner alleged that the petitioner and respondent No.3 are owners of agricultural land and got it irrigated through a, Nakka, the respondent No.3 in connivance with the respondents Nos.1 and 2 got sanctioned a new Nakka, aggrieved thereof the petitioner approached the respondent No.2 for rectification but it was declined. He filed appeal with respondent No.1 which too was dismissed. Aggrieved thereof, the plaintiff/petitioner filed the present suit, it was contested by the respondents, of the divergent pleadings of the parties, issues were framed, parties were put to trial and the suit was decreed: Aggrieved thereof, the respondents filed an appeal, which was allowed and the suit dismissed, hence the present petition.

3. The learned counsel for the petitioner contended that the impugned judgment and decree is not in consonance with law. The ouster of jurisdiction construed by the Lower Appellate Court is erroneous, under section 68(4) of the Canal and Drainage Act, the Courts of plenary jurisdiction have jurisdiction in this context. The order for grant of new Nakka was illegal and surreptitiously obtained with mutual connivance of respondents and lastly the judgment and decree of the trial Court is well reasoned and in consonance with the evidence led, while the impugned judgment is erroneous and illegal.

4. The learned counsel for the respondent No.3 at the very outset submitted that the suit was for Declaration and, Permanent Injunction, no prayer for grant of compensation was made, therefore the judgment and decree of the trial Court suffers from a patent illegality. Further the embargo qua jurisdiction of the civil Court is competent, except mala fide acts. The plaint does not reflect any mala fides on part of the respondents Nos.1 and 2, therefore, the petitioner has no cause and lastly the matter falls within the domain and preview of a factual controversy and cannot be looked into in present jurisdiction.

5. The learned A.A.-G. on behalf of respondents Nos.1 and 2 has submitted that the provisions of Sec.68(4) of the Canal and Drainage Act have been misconstrued by the learned counsel for the petitioner, no new Nakka was sanctioned, thus they are inapplicable.

6. I have heard the learned counsel for the parties and perused the impugned judgment.

7. The petitioner has not been able to point any jurisdictional error in the proceedings conducted by the respondents Nos. 1 and 2, they are bestowed with powers to examine the spot note the contentions of the parties and thereafter decide the matter, this procedure was followed by the respondents Nos.1 and 2, thus there is no illegality on this account. The proceedings were held under the Canal and Drainage Act, it is special statute, unless the discretion 'exercised is fanciful, arbitrary or result of gross abuse of authority or patently mala fide, the matter does not warrant interference. The contents of the plaint, as well as the arguments made today, do not make out a case in this context, no specific details of mala fides have been mentioned, there is also no material evidence to establish connivance between the respondents against the interest of the petitioner, therefore, the matter warrants no interference. The Lower Appellate Court examined the evidence tendered by the parties, the Nakka subject-matter of the dispute was sanctioned after thorough inquiry, it stands established from record, that construction of the mettled road, necessitated this action, there is preponderance of evidence to establish this fact, therefore, the provisions of Sec.68(4) of the Canal and Drainage Act, 1873 are not applicable, as no new Nakka was sanctioned. The evidence tendered by the petitioner/plaintiff was considered in the impugned judgment but found insufficient to help the cause, the learned counsel for the petitioner could not point out any material illegality or irregularity in this context. Resultantly, this petition has no I merits and is dismissed. F.B./M-25/L??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.