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Regular Second Appeal No. 388 of 1956, decided on 14th February 1958, from the decree of the Court of Malik Mohammad Aslam Khan, Additional District Judge, Montgomery, dated the 2nd August, 1956.

S. 68‑Divisional Canal Officer can pass order relating to use or distribution of water whenever difference arises between co‑sharers in particular outlet, even though warabandi exists.

S. 68‑Dispute decided by Divisional Canal Officer‑Decision not challenged before Civil Court‑Same dispute cannot be decided again by Divisional Canal Officer.

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Point not taken in pleading and no evidence adduced on such point‑Cannot be allowed to be raised.

S. 68‑Notice not served on party‑Order of Divisional Canal Officer should not be set aside if such party was present before the Officer at time of proceeding.

Isher Singh v. Jiwan Singh A I R 1932 Lah. 672 rel.

M. B. Zaman and A. R. Niazi for Appellant.

Mohsin Shah and Abdur Rahman Ghazi for Respondents.

Safdar Ali Khilji, Ex‑Engineer, Pakpattan for P. W. D. Irriga tion Branch.

Dates of hearing: 27th & 28th January, 1958.

This appeal arises out of a suit challenging an order passed by the Divisional Canal Officer under section 68 of the ‑Northern India Canal and Drainage Act. The parties are co -sharers in a particular outlet, their lands too being adjacent. Some time before the 22nd June 1954 an application was put in by Shahab‑ud‑Din, who is the appellant, before me, for amendment of the warabandi by allowing him to take water from one nakka instead of two, Shahab‑ud‑Din is the owner of square No. 8 while Ali Muhammad respondent is the owner of parts of squares Nos. 2 and 9. Previously the appellant used to irrigate one part of his square from a nakka which he had joint with one Jalal‑ud‑Din and the remaining part from another nakka which he had joint with the respondent Ali Muhammad. The real point of dispute will pro bably become clear only by having a look at the plan but I will try to explain it as far as that is possible in the judgment. From the first nakka to the second the watercourse runs through square No. 9 diagonally. The case of the appellant is that previously he took water from both nakkas because part of his square which is higher in level could not be irrigated from the first nakka. He says he has now levelled the whole of his square so that it is possible for him to irrigate the whole of it from the first nakka. The injury caused to him if he continues taking water from the second nakka is the loss of time which is spent in the water being carried from the first nakka to the second nakka. The reason why the respondent opposes the grant of water to the appellant from the first nakka only is that he irrigates his field from the second nakka and whereas previously water was taken to the second nakka by the appellant, he would, if the prayer of the appellant be granted, have to take the water from the first to the second and it is he who will lose the time which the appellant was previously losing. On the application of the appellant, the Divisional Canal Officer, after considering the objections of the respondent, passed an order on the 22nd June 1954 that the appellant should in future be allowed to irrigate his square from the first nakka alone. He at the same time ordered that on account of the time which Ali Muhammad respondent will lose in taking water from the first nakka to the second, he shall be awarded an extra thirty minutes. The present suit was filed by Ali Muhammad respondent to challenge this order. The grounds of attack on the order are four. The first is that the Divisional Canal Officer has no jurisdiction to amend the warabandi which already existed; the second is that the proceedings under section 68 were taken by the Divisional Canal Officer without notice 'to all the interested parties ; the third is that the new nakka had been fixed in contravention of rules bearing on the point, and the fourth is that the plaintiff has suffered loss owing to the fixing of the new nakka. The following issues were framed‑

(1) Whether the Divisional Canal Officer was not competent to amend the previous warabandi

(2) Whether the new nakka for the land of defendant No. 1 had been fixed in contravention of the rules bearing on the point

(3) Whether the plaintiff had suffered any loss owing to the fixation of the said new nakka and the warabandi order in dispute was liable to be set aside on this ground

(4) Relief.

The trial Court found on issue No. 1 that the Divisional Canal Officer had jurisdiction to amend the warabandi. On the second issue it was found that there was no contravention of the rules. On the third issue it found that the plaintiff would be put to some loss on account of the new arrangements because he will have to carry the water from the first nakka to the second and will lose the time which was spent in so carrying the water, but it held that the plaintiff had been compensated by the Divisional Canal Officer by the award of an extra time of thirty minutes to him. The learned trial Judge found also that the notice of the warabandi pro ceedings had not been served on some of the landowners but held that only the plaintiff and the respondent were interested in the subject‑matter of the suit and, therefore, such notice was not necessary. On these findings he dismissed the plaintiff's suit.

2. On appeal the learned Additional District Judge held that the Divisional Canal Officer had no jurisdiction to amend the warabandi as no new circumstance had arisen. As regards the argument that there had been levelling of the square of the appel lant, and therefore a new factor had come into existence, the learned Judge remarked that there was no averment in the written statement to this effect and no evidence had been led. He held that the order was without jurisdiction and liable to be set aside As regards notice, the learned Judge observed that there could be no valid distinction between interested and disinterested co‑sharers and, therefore, if notice was not served even on some of co‑sharers in the outlet the order would be void. However, the learned Judge was not prepared to set aside the decree of the lower Court on this ground as no specific issue had been framed on the question of notice. On account of his finding that the Divisional Canal Officer had no jurisdiction to amend the warabandi, he accepted the appeal and decreed the suit.

3. It is urged by learned counsel for the appellant that the view of the learned Additional District Judge as to the incompe tency of the Divisional Canal Officer to amend the warabandi by virtue of his power, under section 68 of the Northern India Canal and Drainage Act is not correct. As already stated the learned Additional District Judge was of the opinion that unless a new factor came into existence the previous warabandi could not be amended. He had observed that there was no averment in the pleadings nor had evidence been led as to the levelling of the square of the appellant. I do not agree with him as regards the legal proposition and the observation as to absence of evidence with respect to levelling is not correct. A reference to section 68 would show that the Divisional Canal Officer has jurisdiction to pass an order relating to the use or distribution of water whenever a difference arises between co‑sharers in a particular outlet. That is the whole requirement of the section. The fact that a warabandi exists does not debar the Divisional Canal Officer from acting. In fact if such interpretation were put on section 68 it would become almost useless for warabandis exist for all outlets. Section 68 is like an arbitration clause and is attracted whenever a dispute arises It may be that even with reference to facts which were already in existence a person raises a dispute. As long as that dispute had not been decided by the Divisional Canal Officer, he would have jurisdiction to pass an order under section 68. The fact that the dispute is being raised on facts which have been in existence for a long time may affect the decision of the Divisional Canal Officer on the merits of the dispute but the competence of the Divisional Canal Officer does not depend on the coming into existence of new facts.

4. Even if the existence of new facts was essential the present is not a case where the order would be without jurisdiction. It is quite clear, and in fact it is not denied, that the reason for the appellant originally accepting water from two nakkas was that there was a difference of level in the two parts of square No. 8 so that from one nakka the whole square could not be irrigated. The appellant says he has now levelled his square so that he can easily irrigate his land from the first nakka. It is true that this plea was not specifically taken in the written statement but this was the ground of the decision of the Divisional Canal Officer so that he was proceeding on the basis of new facts. He had said in his order that with a slight levelling of the field it was possible for the appellant to irrigate his whole square from the first nakka. It would seem that at the time of the passing of the order there had already been so much change in the level that with a slight effort irrigation from first nakka was possible. The appellant has made a statement in the witness‑box that before putting in the application he had levelled his square. (The learned Additional District Judge's observation that there was no evidence of levelling was not correct on the record.) This statement I am quite prepared to accept for unless he had levelled his field the getting of water from the first nakka would be of no use to him. Learned counsel for the respondent does not accept that the square has been levelled. He agrees that if the square had been levelled the Divisional Canal Officer would be competent to amend the warabandi. I do not really see how, if by simply levelling his field the appellant could give the Divisional Canal Officer jurisdiction to amend the warabandi, that Officer would not have jurisdiction even in antici pation of complete levelling, for after all that is a matter with which the appellant alone is concerned and it is something which he can do at any time. If he does not alter the level, it is he who will suffer. One aspect of the matter is that the impugned order can apply only to changed circumstances, for it is only if the level is altered that the order can be availed of. It seems to be strange that the respondent should base the whole of his argument on the fact that the appellant has not as yet levelled his field.

5. Another point taken in this connection is that previously too an application had been put in by Shahab‑ud‑Din appellant on which application it had been ordered on the 18th of June 1943 (vide Exh. P. 4) that the appellant shall get water from both the nakkas. It is contended that the same dispute, as there is between the parties now, was before the Divisional Canal Officer at that time and he having once passed an order which has not been challenged before any Civil Court, that order is final and binding The legal proposition involved in this argument is correct but the argument is otherwise wholly without force. It had not been pleaded at all in the plaint that the Divisional Canal Officer had no jurisdiction because the same dispute had already been decided by him by a previous order, nor was any evidence led to that effect. The respondent never said in the witness‑box that this dispute was ever before the Divisional Canal Officer at any previous time. No argument was addressed to either of the two Courts below that the same dispute had been decided by the Divisional Canal Officer by the order of 18th June 1943. myself gone, through the order and find that the dispute was a different one. At that time on account of the level of his land the appellant was accepting that he should get water from two nakkas, but the question was whether from either of the two nakkas from which he was taking water jointly with other persons, (one being the respondent), he should be the only one to take water up to his field or whether water should be taken to that field by each sharer by turn. It was decided that it should be done by turns. The reason of the order was that every co‑sharer who takes water to his field spends some time in so doing and it is but fair that the loss of time should be borne equally by the co‑sharers.

6. The next objection taken on behalf of the respondent is that some persons who are co‑sharers in the outlet had no notice of the proceedings under section 68. I agree with the trial Court that it is only interested persons whose presence is necessary. I am not prepared to read section 68 to mean that all co‑sharers in an outlet, irrespective of whether they are affected by the decision of a dispute, must be served if the order under section 68 is not to be void. It is obvious that in the present dispute no other person except the appellant and Ali Muhammad respondent is interested. The only person who filed the present suit is Ali Muhammad respondent and he was admittedly present before the Divisional Canal Officer. I would even agree with Tek Chand, J., in Isher Singh v. Jiwan Singh (A I R 1932 Lah. 672) that it is only non‑service of persons who make a complaint as can vitiate the proceedings and that an order under section 68 should not be set aside for want of notice at the instance of those who were present ‑in the proceedings before the Divisional Canal Officer.

7. As a result this appeal is accepted and the suit of the plaintiff is dismissed, but the parties shall bear their own costs.

K. M. A. Appeal accepted.

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