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Civil Appeal No. 57 of 1967, decided on 29th May 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 1st December 1965, in Letters Patent Appeal No. 34 of 1958).

--Art. 58 (3)‑High Court in its judgment observing that particular question was not easy to decide‑Special Leave granted by Supreme Court to consider question.

Non‑joinder of necessary party‑No objection taken either in Court below or before Supreme Court‑Court, held, entitled under provisions of O. 1, r. 9, C. P. C. to "deal with matter in controversy so far as regards the rights and interests of the parties actually before it"‑Order of warabandi by Divisional Canal Officer under Canal and Drainage Act, 1873 impugned-- Practice has grown up in West Pakistan not to join him as party in suit filed to challenge his order‑Civil Procedure Code (V of 1908), O. I, r. 9‑Canal and Drainage Act (VIII of 1873).

Muhammad Ishaq v. Muhammad and others P L D 1958 Lah. 717 ref.

Warabandi-- Para. 8 (a) of instructions contained in Appendix "E" of Revenue Manual‑Word "main watercourse"‑Means the tail naka of which is farthest from the outlet‑Mere fact that particular channel of watercourse runs in a straight line in continuation of main watercourse‑Cannot necessarily make that continuation also a part of main watercourse.

Sirajuddin Ahmad, Senior Advocate Supreme Court instructed by Abdul Karim, Attorney on behalf of Wall Muhammad Khawaja, Senior Attorney on record for Appellants.

A. A. K. Lodhi, Senior 'Advocate Supreme Court instructed by Muhammad Nazar Khan, Senior Attorney for Respondents.

Date of hearing : 29th May 1968.

This appeal by special leave arises out of a suit filed by the respondents herein on the 10^th October 1953, for a declaration that the warabandi order of the Divisional Canal Officer, Lower Gogera Division, Lyallpur, dates the 3rd July 1953, regarding Mocha No. 42230 Rajwaha Mongi, Chak No. 248/G. B., was illegal, ultra vires, void and not binding upon the said respondents. A permanent injunction for restraining the appellants herein from acting upon the said order was also prayed for in this suit.

The allegations in the said suit were that by a warabandi fixed in 1913, the respondents, who are the owners of lands it Square No. 4/47, were all along getting the Nikal water, but by the impugned order, the prvisional Canal Officer had, without any notice to the respondents, altered the warabandi and giver the Nikal water to the appellants who were owners of land; in Square No. 6/23. There was also an allegation that the turn, of water of some of the rea0ondents had been illegally reduced and in the case of some others the off‑take had been wrongly changed.

This suit was contested by the appellants who denied all the allegations and maintained that the order of the Divisional Canal Officer was in every way a valid and lawful order and had been made in accordance with the rules and instructions framed under the Canal and Drainage Act, 1873.

On these pleadings only two issues were framed, namely:

(i) Whether the order of the Divisional Canal Officer and is illegal and void on the grounds mentioned in the plaint

(ii) Relief.

The Divisional Canal Officer was not made a party to the suit although the validity of his order was being challenged therein. No objection was, however, taken on this account. The trial Court, therefore, dealt with the suit on merits and came to the conclusion that the order of the Divisional Canal Officer was a valid and legal order as he had correctly, in accordance with the provisions of paragraph 8(a) of the instructions contained in Appendix E of the Revenue Manual held that Square No. 6/23 was "at the end of the main watercourse and Square No. 4/47 lay at the end of a branch. The trial Court also rejected the other grounds taken in the faint. It is unnecessary however, for our present purposes to recount these grounds.

On appeal the Senior Civil Judge of Lyallpur, disagreed with the conclusions of the trial Court as regards the legality of the order of the Divisional Canal officer. According to the learned Senior Civil Judge, although the expression main water course had not been defined in the canal Act or the rules made therunder ". it would, in the present case, be "that which is longer and from which distribution of water is made."

Upon this principle he came to the conclusion that the watercourse which ends at Square No. 4/47 is the main water‑course, for it is 4 or 5 times longer than the watercourse which ends at square No. 6/23. He also found support for this view from the order of the Canal authorities passed in the year 1913, in which the same principle had been applied and the Nikal right given to the owners of Square No. 4/47.

After the determination of the question as to which is the main watercourse there was no difficulty in the application of paragraph 8 of the instructions contained in Appendix E' to the Revenue Manual. The decree of the trial Court was accordingly varied to the extent that the turn of water of the owners of Square No. 6/23 was to be fixed before the turn of water of the owners of Square No. 4/47, and the owners of Square No. 4/47 were to get the right of Nikal.

From this judgment the present appellants came to the High Court, in second appeal, but a learned Single Judge agreeing with the conclusions of the Senior Civil Judge also held that the owners of Square No. 4/47 were entitled to the Nikal water and not the owners of Square No 6/23, because, according to him also the main watercourse was the watercourse which led to Square No. 4/47. This interpretation was also upheld by a Letters Patent Bench. Hence the present appeal.

Leave to appeal was granted, because, the question appeared to be one of first impression so far as this Court was concerned, particularly, since the learned Single Judge of the High Court had himself observed that the question was not an easy one to decide.

It may be pointed out at this stage that we have heard the appeal on merits notwithstanding the fact that the Divisional Canal Officer, who made the impugned order, was a necessary party to the suit as we find that no objection on this ground was taken either in the Courts below or in the petition for special leave or in the concise statement. In this view of the matter the Court is, we think, entitled under the provisions of Order I, rule 9 of the Code of Civil Procedure, to "deal with the matter in controversy so far as regards the rights and interests of the parties actually before it," notwithstanding the non joinder of a necessary party. Apart from this we find that a practice has grown up in this Province under which the Divisional Canal Officer making an impugned order relating to a warabandi is not joined as a party in a suit filed to challenge such an order. (Vide Muhammad Ishaq v. Muhammad and others) (1).

Now the watercourse in dispute in this case, as has been described in the judgment of the learned Single Judge of the High Court, emanates from the outlet No. R. O. 42230 from the Mungi Distributory. Then it cuts along in a straight line but diagonally through Squares Nos. 48/3, 50/5 and 44/7 till it comes to the north‑east corner of Square No. 53/15 but from there it runs in a straight line to the south‑east corner of Square No. 6/23 where it comes to an end. There are several branches coming out of this watercourse and running perpendicular to it between the north‑east corner of Square No. 53/15 and the south east corner of Square No. 6/23. The last of these is the one which feeds the fields of Square No. 4/47. There is no dispute that up to the point from where the watercourse leading to Square No. 4/47 begins the main watercourse is the one that comes in a straight line from the north‑east corner of Square No. 53/15 to this place. There is also no dispute that the warabandi is to be fixed according to paragraph 8(a) of the instructions contained in Appendix E'. It is also admitted that by the warabandi fixed in 1913, the watercourse leading to Square No. 4/47 was treated as the main watercourse and the watercourse going in a straight line to Square No. 6/23 was treated as a branch from the point at which the admitted main watercourse met the watercourse leading to Square No. 4/47.

Paragraph 8(a) of the instructions reads as follows :‑---

"8. Order of turns.‑The order of turns should be definitely laid down in accordance with one of the following systems :‑

(a) Down the watercourse i.e. in order of distance of the off‑take from the outlet. In this case, the order proceeds down the main watercourse to the head of the first branch, then down the branch before continuing down the main watercourse. Similarly as regards sub- branches."

It will be apparent from this that in order to set in accord ance therewith one has of necessity first to determine as to which is the main watercourse and which the branch. There being no specific guideline in this behalf either under the instructions themselves or in the Act itself, the learned Judge found that under the rules relating to warabandi framed under the Canal and Drainage Act a definition of the "main watercourse" had been given in these terms :‑

"The main watercourse' is the watercourse the tail naka of which is the farthest from the outlet."

(We quote this from the judgment of the learned Single Judge as its correctness is not disputed).

Applying this definition the learned Judge came to the conclusion that the so‑called branch leading from the admitted "main watercourse", running from the north‑east corner of Square No. 53/15 to the point at which this bifurcation takes place, was the main watercourse, for, the length of this arm was 5 times the length of the other arm going from that point to the south‑east corner of Square No. 6/23.

The argument that since the watercourse which runs in a. straight line up to the south‑east corner of Square No. 6/23 is a continuation of what is admittedly the main watercourse and all the other perpendicular off‑takes from this main watercourse have been admittedly treated as branches, there is no reason why a similar parallel off‑take should be regarded differently, was re pelled on the ground that mere continuation of the line of the main watercourse is not, by itself, sufficient to make the a continuation a part of the main watercourse. Nor is the tact that the oil take leading to Square No. 4/47 is parallel to the other off‑takes, admittedly treated as branches, a conclusive argument. According to the learned Judge, the criterion that has to be adopted to decide this question is as to what is the main watercourse with reference to a particular outlet. "We should," the learned Judge says, "first see which tail naka is farthest from the outlet, and the main watercourse will be the one which connects directly, by the shortest distance the tail naka with the outlet." Although the learned Judge accepted that the adoption of this principle may, in some cases, lead to difficulties, yet he thought that this principle should be adopted, because, it was in consonance with justice and the rights of the parties.

Learned counsel, appearing in support of the appeal, has reiterated the arguments that were advanced before the learned Single Judge and has strenuously contended that the decision of the High Court is opposed to paragraph 8 (a) of the instructions. This is, however, begging the question, for, as we have already pointed out, in order to apply the rule laid down in this paragraph, one has first to determine as to which is the main watercourse and which is the branch. In this case the learned Judge found a definition in the rules which supported the principle that had been adopted as long ago as 1913 and followed until 1954 when the appellants managed to get the warabanai changed. We have carefully examined the reasons given by the High Court in support of its conclusions and find ourselves in full agreement with those reasons. The mere fact that a particular channel of a watercourse runs in a straight line, in continuation of the main watercourse, cannot necessarily make that continuation also a part of the main watercourse, for, a situation may well arise where instead of there being one con tinuation of the main watercourse the main watercourse may, at a particular place, bifurcate in 4 or 5 directions and none of these is in a straight line with the main watercourse. In such a situation which of the bifurcations will be regarded as the main water‑course Surely the one which is the longest in length and the tail naka of which is farthest from the outlet. We see no inconsistency, therefore, in the adoption of this principle for determining the main watercourse, particularly, since this interpretation seems also to be in accord with what was until the impugned order was made, consistent with the interpretation of the department itself from 1913 up to 1954. We see no reason, therefore, to disagree with the conclusions of the High Court.

This appeal accordingly fails and is dismissed but we make no order as to costs.

Appeal dismissed.

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