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Civil Revision No. 81‑D of 1978, decided on 8th October, 1983.

‑‑ S. 39 ‑Minor Canals Act (I1I of 1905), S. 28‑Division of dam into two water channels‑Entry got effected in record by respondents against rights of petitioner‑Change of irrigation system by revenue authorities‑Right of petitioner to irrigate his lands from dam in question forming part of settlement record under Land Revenue Act, 1967‑Water channel in dispute hiving only one dam which used to irrigate lands of petitioner and no other branch emanating from said darn‑Division of dam into two branches, held, without justification.

‑‑ Ss. 39 & 53 and Minor Canals Act (III of 1905), S. 28 and Specific Relief Act (1 of 1877), S. 42‑Wrong entries made in re venue record‑‑Aggrieved person, held, has his remedy under section 53, West Pakistan Land Revenue Act, 1967‑Declaratory suit in civil Court under section 42 of Special Relief Act, 1877 competent‑Matter falling within jurisdiction of civil Court and question involved re lating to right to use irrigation water, held further, not covered by section 10, Minor Canals Act, 1905‑Findings of Courts below hold ing otherwise set aside and case remanded for decision afresh. [Jurisdiction].

Muhammad Ishaq Khan Kundi assisted by H. Saadullah Khan for Petitioner.

Azizur Rehman Khan, Moeenudin Khan and S. Bashir Hussain Zaidi for Respondents.

Date of hearing : 4th September, 1983.

Sardar hasti Khan, petitioner herein, is a landlord, owning lands in village Rind, Tehsil Kulachi of District D. I. Khan. These lands are irrigat ed by Gandi Tomni and this Dam is the only source of irrigation of his lands since 1878. When record of rights was first prepared in 1878, this Dam (Gandi Tomni) was entered as a permanent and an unbreakable Dam and being the first Dam of water channel known as Rod Ramak'. The entire water channel Rod Ramak enters Gandi Chhar' through the Gandi Tomni and then irrigates the lands of the plaintiff. The same system of irrigation was repeated in the settlement record of 19031904 and Gandi Tomni had not been broken or interfered with in any way. However, in the year 1965‑66 when settlement record was again prepared, an entry was made therein in the absence and without the consent of the plaintiff to the effect that the water channel Rod Ramak divides into two parts from Gandi Tomni and one branch is known as Chhar' and the other branch is known as Tal Rod Ramak'. This wrong entry, dividing the water in two branches, was got affected by defendant No. 4 in collusion with defendants Nos. 1 to 3 without any legal right, fictitiously and against the rights of the plaintiff. The Revenue Authorities had no jurisdiction to change the irrigation system which was incorporated in the settlement records of 1878 and 1903‑1904 nor the Collector, defendant No. 2, could divide Gandi Tomni into two water channels. The plaintiff challenged the said wrong entries in 'the revenue record before the Revenue Authorities upto the Board of Revenue but fail ing there, he instituted a civil suit in the Court of Senior Civil Judge, D. 1. Khan, for a declaration challenging the division of Gandi Tomni into two water channels and for permanent injunction restraining the defendants from breaking the same Dam and not to interfere with his irrigation rights. This suit was contested by the defendants. They inter alia raised the plea that the civil Court had no jurisdiction to adjudicate upon this matter which was exclusively within the jurisdiction of the Revenue Authorities The trial was held on the following issues

(1) Has this Court got jurisdiction to entertain this action O.P.P.

(2) Has the plaintiff any cause to bring this action O.P.P.

(3) Is the suit not maintainable in its present form O.P.D.

(4) Is the suit within time O.P.P.

(5) Is the suit bad for the non‑joinder of necessary parties O.P.D.

(6) Is the plaintiff estopped to use the defendants O.P.D.

(7) Has the plaintiff a locus standi to bring the suit O.P.D.

(8) Has the suit been properly valued for purposes of Court and juris diction O.P.D.

(9) Is the plaintiff entitled to the declaration prayed for O.P. P.

(10) Is the plaintiff entitled to the permanent injunction prayed for O.P.P.

(11) Relief

Additional Issue : Whether the orders of Collector, dated 21st August, 1971, 6th January, 1972, 22nd February, 1972 and that of Additional Commissioner, dated 4th December, 1972 and that of Board of Revenue, dated 4th July, 1973 are void and ineffective against the rights of the plaintiff

2. After recording the evidence, as produced by the parties, the learned Senior Civil Judge decided issue No. 1 about jurisdiction against the plaintiff, issues Nos. 2, 7, 9, 10 and additional issue also against the plaintiff and dismissed his suit vide his judgment, dated 26th July, 1977. The plaintiff filed an appeal in the Court of learned District Judge, D. 1. Khan, and the latter, agreeing with the findings of the learned trial Judge on issue No. 1, dismissed the appeal vide his judgment. dated 15th May, 1978. The learned District Judge held that in view of section 60 of the Minor Canals Act and section 172 of the Land Revenue Act, the civil Court had got no jurisdiction.

3. The revision petition was argued at length before me by the learned counsel for both the parties. It was contended by the learned counsel for the petitioner appellant that the suit of the plaintiff was governed by section 53 of the Land Revenue Act, 1967, which was analogous to section 55 of the Punjab Land Revenue Act, 1887, and the only remedy available to the plaintiff was by way of a civil suit under the provisions of the Specific Relief Act. On the contrary, the learned counsel for the respondents con tended that no question of title was involved in the water channel in dispute and change in custom of irrigation could be made any time by the Govern ment and the water was not the property of the plaintiff but the Government and the plaintiff could not establish any title over it, hence entries about division of water of the water channel Rod Ramak, as made in the settle ment record of 1965‑66, were correctly made.

4. Section 28 of the Punjab Minor Canals Act, 1905 empowers the Collector to prepare record for any canal. For the sake of better under standing, the provisions of subsection (1) of section 28 are reproduced as under :‑

"The Collector shall, whenever the Local Government may, by special order or by the rules made under the authority of this Act, so direct, prepare or revise for any canal a record showing all or any of the following matters, namely :‑

(a) The custom or rule of irrigation ;

(b) the rights to water and the conditions on which such rights are right, enjoyed ;

(c) the rights as to the erection, repair, reconstruction and working of mills, and the conditions on which such rights are enjoyed ; and

(d) such other matters as the local Government may by rule prescribe in this behalf."

5. The minute perusal of the aforesaid provisions would show that the preparation of record of a canal does not include the case of making further branches of any canal or distributing of water of a canal into other new branches.

6. The learned counsel for the respondents urged that if any dispute arose between two or more persons in regard to their mutual rights and liabilities in respect of the ownership, construction, use or maintenance of a canal or watercourse, then any such person may, in writing, apply to the Collector stating the matter in dispute and then the Collector shall proceed to enquire the matter in dispute. His contention was, therefore, that as a dispute about the use of water of the water channel Rod Ramak had arisen the matter fell within the exclusive jurisdiction of the Collector and the civil Court and no jurisdiction to entertain the same.

7. However, section 31 of the Punjab Land Revenue Act, 1887, pertaining to record of rights shows as which documents shall be entered in the record of rights. For the sake of better understanding, this section is also reproduced as under : ‑

(1) "Save as otherwise provided by this Chapter there shall be a record‑of‑rights for each estate.

(2) The record‑of‑rights for an estate shall include, the following docu ments, namely :‑

(a) statements showing, so far as may be practicable,

(i) the persons who are landowners, tenants or assignees of land revenue in the estate, or who are entitled to receive any of the rents, profits or produce of estate or to occupy land therein

(ii) the nature and extent of the interests of those persons, and the con ditions and liabilities attaching therein ; and

(iii) the rent, land‑revenue, rates, cesses or other payments due from and to each of those persons and to the Government.

(b) a statement of customs :expecting rights and liabilities in the state ;

(c) a map of the estate ; and

(d) such other documents as the Financial Commissioner may, with the previous sanction of the Local Government prescribe."

Vide Notification No. 76, dated 1st March, 1888 of the Punjab Govern ment: A standing order as issued under these provisions whereby a statement of rights in wells and a statement of rights in irrigation, if any from other sources were also to form part of the settlement. record. It shall thus seen that although the Water Channel Rod Ramak is governed by the provisions of the Punjab Minor Canals Act, 1905, however, right of irrigation of lands therefrom was to form part of the settlement record under the Land Revenue Act, 188':. The aforesaid section 31 of the Punjab Land Revenue Act, 1887 in now section 39 of the West Pakistan Land Revenue Act, 1967. And any settlement record made under the former Act is also be maintained and kept under section 39 of the 1967 Act.

7. It is thus clear that the right of the plaintiff to irrigate his lands, from the Dam in question formed part of the settlement record under the Land Revenue Act, 1967 and in the settlement of 1878, the Water Channel Rod Ramak had only one Dam known as Gandi Chhar' and it used to irrigate the lands of the plaintiff. There was no other branch emanating from this Dam. The division of this Dam into two branches in 1965‑66 was therefore, without justification.

8. As the plaintiff felt aggrieved by the said wrong entries in the reve nue record of 1965‑66, his remedy lay under section 53 of the West Pakistan Land Revenue Act, 1967, which is analogous to section 45 of the Punjab Land Revenue, Act, 1887, and the only remedy available to the plaintiff was a declaratory suit in a civil Court under section 42 of the Specific Relief Act, 1877.

9. The learned trial Judge and the learned District Judge were both wrong in holding that the matter indispute in the present suit did not fall within the jurisdiction of the civil Courts. The learned District Judge was further in error on relying on the provisions of section 172 of the West Pakistan Land Revenue Act, 1967. because, the provisions of section 53 of this Act are very clear and the matter fell within the clear jurisdiction of the civil Courts. Section 10 of the Minor Canals Act is also not applicable, as held by the learned District Judge, because, it was not a question of control, management and direction for the efficient maintainance and working of a canal. On the contrary, it was a question of right to us the irrigation water which is not covered by the provisions of section 10. I would, therefore, set aside the findings of both the learned lower Courts on issue No. 1 and decide this issue in the affirmative.

10. The net result of the above discussion is that I would accept this revision petition, set aside the impugned judgment, dated 15th May, 1978 of the learned District Judge, D. 1. Khan and findings of the learned trial Judge on issues Nos. 2, 7, 9, 10 and additional issue and would remand this case back to the trial Court for a fresh decision taking into account the entries about the use of water of the Dam in question ash record in the settlement of 1878 and thereafter and then to determine the respective rights of the parties. Costs to follow the event. The parties are directed to appear before the learned Senior Civil Judge, D. I. Khan on 3rd November, 1983.

M. Y. H. Petition accepted.

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