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Civil Appeal No.302 of 1977, decided on 24th November, 1984.

(On Appeal from the judgment, dated 29-1-1976 of the Lahore High Court, Lahore in Civil Revision No.575 of 1975).

---Art. 185(3)--Canal and Drainage Act (VIII of 1873), Ss.68 & 20 to 28--Leave to appeal granted to consider whether finding of High Court that grandson of deceased land-owner had given consent was erroneous.

---Ss.68 & 20 to 28--Constitution of Pakistan (1973), Art. 1850) --Sanction of watercourse--Notice--Notice issued to all land-owners including appellant who initiated proceedings under S.68--Notices were duly served and application was decided only when it was established on record that notices had been served upon all land-owners--Appellant, although was duly served but sent his grandson either to represent him or to watch proceedings--Grandson of appellant giving consent to sanction of watercourse--Original plaint filed by appellant had not challenged correctness of sanctioning of watercourse and said plaint showed that appellant (plaintiff) was agreeable to construction of watercourse through his area--High Court finding that consent of grandson was consent of grandfather (applicant)--Appellant unable to refute inference drawn by High Court with regard to contents of plaint nor was able to point of any other material on record to show that finding was not well-founded Contentions on basis of which leave was granted by Supreme Court having not been established by appellant, Supreme Court dismissed appeal.

A.W. Butt, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record (absent) for Appellant.

Respondent No.l in person.

Ch. Akhtar Ali, Advocate-on-Record (absent) for Respondents.

Date of hearing: 24th November, 1984.

This appeal, by leave of this Court, is directed against the judgment, dated 29-1-1976 passed by a learned Single Judge of the Lahore High Court, Lahore, accepting the revision petition of Muhammad Hussain, respondent No.l herein, and setting aside the order of the Additional District Judge, Lyallpur (now Faisal abad), dated 25-3-1975.

The relevant facts are that the father of the appellant and respondent No.l, inter alia, owned land in. Square No.14 of Chak No.4171JB, Tehsil Toba Tek Singh, District Lyallpur (now Faisalabad). In pursuance of an application under section 68 of the Canal & Drainage Act submitted by one Ilam Din on behalf of the shale-holders of Outlet No.29869 R. Dhaular distributory before the Divisional Canal Officer, notices were issued to all the land-owners including Jalal Din, father of the appellant herein. Notwithstanding the said notice, Jalal Din did not appear in person before the Divisional Canal Officer on the date fixed, namely, 3-3-1967, but his grandson Abdul Latif (son of Hidayat Ali--the appellant herein) appeared on his behalf. The learned Divisional Canal Officer, vide his order passed on 3-3-1967, sanctioned a new Nakka at Killa No. 21 of Square No. 14 and also sanctioned a new watercourse in Killas Nos. 21 to 25 in Square No.14, allegedly with the consent given by Abdul Latif, grandson of Jalal Din, aforesaid.

Sometimes thereafter, Muhammad Hussain, respondent No.l, submitted an application claiming that his area in Killas Nos. 12, 13, 20 and 21 in Square No.ll and Killas Nos.. 6, 7, 14 and 15 of Square No.14 and Kills No.l of Square No.45 had been included in the Canal Commanded Area by the Superintendent Canal Officer, West Circle, Lyallpur (now Faisalabad) and prayed that an amended Warabandi may be prepared. Notices of this application also were served upon the land-owners. Some of the land-owners contested this application, inter alia, on the ground that the allotment of Muhammad Hussain, respondent No.l, had been cancelled. The case was adjourned a number of times for verification of this allegation and when it was ultimately taken up on 17-9-1968 none of the objectors appeared and only Muhammad Hussain, respondent No.l, was present who denied the said allegation. Accord ingly, in the order passed on 17-9--1968 he was allowed water from Nakka at Killa No.21 of Square No.14 for irrigating his land in Square No. 11. A watercourse was also sanctioned between Killas Nos. 15 and 16 which belonged to the Government. In this way, Muhammad Hussain, respondent No.l, was, by the order, dated 77-9-19688, allowed water for irrigating his land. Jalal Din, father of lirdaya All (appellant herein) felt aggrieved by this turn of events and filed a suit on 27-9-1968 to challenge the order, dated 17-9-1968. In this plaint, although he referred to the earlier order which was passed on 3-3-196. ,put he did not challenge its validity and merely stated that Muhammad Hussain, respondent No.l, had been allowed by that order to irrigate his lands from the Nakka in Killa No.21 but that he (Jalal Din) had, thereafter, settled the matter with him by entering into a compromise where Muhammad Hussain, respondent No.l, agreed to irrigate his lands only for the Rabi crop. He further averred that it was on account of this compromise that he (Jalal Din) had not raised any objection. After making these factual averments certain grounds were stated on which the order, dated 17-9-1968 was challenged. Shortly thereafter, Jalal Din appears to have realised that he could not succeed unless he challenged the validity of the earlier order, dated 3-3-1967 also. He, therefore, applied for amendment of his plaint and in the amended plaint challenged the earlier order, dated 3-3-1967 also on the ground that it was passed without any notice to him and without giving him an opportunity of being heard and that the Divisional Canal Officer had no jurisdiction to sanction a watercourse from the private land of the appellant without complying with the legal provisions (sections 20 to 28 of the Canal and Drainage Act). It was also contended that the order, dated 3-3-1967 passed by the Divisional Canal Officer was not based on his consent but on the consent given by an unauthorised person. The suit was contested by Muhammad Hussain, inter alia, on the ground that both the orders had been passed after affording full opportunity to the plaintiff (Jalal Din) and that the first order was passed with his consent.

The pleadings of the parties gave rise to the following issues:-

(1) Whether the suit is within limitation

(2) Whether the orders of the D.C.O., dated 3-3-1967 and 17-9-1968 are illegal, ultra vires and void

The learned trial Court decided the first issue in favour of the plaintiff but found against him on Issue No.2 and dismissed his suit. During the pendency of the suit, Jalal Din died and his son Hidayat Ali (appellant herein) was impleaded as a plaintiff. An appeal was, therefore, filed by the appellant herein against the judgment of the trial Court, which was allowed by the learned Additional District Judge, Lyallpur (now Faisalabad). He held that the watercourse through the land of the plaintiff could be sanctioned only after the assessment and payment of the compensation to the owners but in the present case no objections were invited from the interested parties nor any compensation was assessed for payment to the plaintiff-appellant. The mandatory provisions of law contained in sections 20 to 28 of the Canal and Drainage Act were overlooked. He further held that the order, dated 3-3-1967 was passed in the absence of Jalal Din. He accordingly allowed the appeal. Aggrieved by the above decision, Hidayat Ali, appellant herein, moved the High Court by a revision petition.

The learned Judge in the High Court found, in a well-considered order, that the judgment of the learned Additional District Judge was based partly on misreading of the record and partly on ignoring it. He held that it was proved by ir-rebuttable evidence that Jalal Din was served for the proceedings culminating in the order, dated 3-3-1967. It was further observed that the learned Additional District Judge had also failed to consider that the grandson of Jalal Din, namely, Abdul Latif, had put in appearance before the Divisional Canal Officer presumably on his behalf and gave consent for the sanctioning of the watercourse through the land belonging to the plaintiff (Jalal Din). He pointed out that the learned Additional District Judge had ignored the admission made by Muhammad Ali son of Shukkar Din, P.W.2, about the presence of Abdul Latif at the time when the order was passed. He further noted that this witness had also admitted that the plaintiff's grandson had represented him in these proceedings. He further noted that the learned Additional District Judge also ignored the admission made in paragraph 3 of the plaint as originally filed, from which it was clear that the plaintiff was agreeable to the construction of the water course passing through his area. The learned Judge concluded:-

"All the factors prove, beyond any shadow of doubt, that the first order was passed with the consent of the plaintiff and the consent of his grandson was really his consent. His subsequent conduct in acting upon that consent and allowing the water from Nakka at Killa No.21 to flow through the watercourse constructed in implementation of the order, dated the 3rd March, 1967, proves his agreement to the construction of that watercourse without any claim for any compensation."

Dissatisfied with the judgment of the High Court, Hidayat Ali moved this Court for leave to appeal and this Court granted him leave to appeal observing:-

"Mr. A.W. Butt, the learned counsel for the petitioner has contended, amongst other points, that the observations of the learned Single Judge that Jalal Din, father of the petitioner, has not raised any objection before the Divisional Canal Officer and his grandson represented him in the proceedings before the Revenue Authorities and consented is not correct. According to him, the finding of the learned Single Judge that the grandson of the deceased has given consent is erroneous and requires further consideration. This contention appears to us to be well founded. We would, therefore, grant leave to appeal."

We have heard Mr. A. W. Butt, learned counsel for the appellant, at length and carefully examined the record available in the printed paper-book of this Court.

We find that the learned Judge in the High Court had categorically found that the order, dated 3-3-1967 was passed after notice was issued to ail the land-owners including Jalal Din of the application submitted by Ilam Din for initiating proceedings under section 68. According to the learned Judge the notice to Jalal Din was duly served and that fact was established from the perusal of Exh. D/2 as well as from the, terms of the order, dated 3-3-1967 Exh. P/5 which showed that they application of Ilam Din was granted only after notices had been served upon all the land-owners. Unfortunately the learned counsel for the appellant has not caused any of these documents to be printed for inclusion in the paper-book and hence there is nothing before us to show that these findings are not based on a proper and correct reading, of the relevant record. It would, thus, appear that although Jalal Dine was duly served he did not, despite service, appear personally before the authorities but sent his grandson either to represent him or to, watch the proceedings.

The further question, however, that arises is that even if Jalal Din's grandson, namely, Abdul Latif had given his consent to the sanction of the watercourse whether the said consent would bind Jalal Din unless it is shown that Abdul Latif aforesaid was authorised by Jalal Din in the relevant regard This question too has been examined by the learned Judge in the High- Court and he was of the opinion that the consent of Abdul Latif was really the consent of Jalal Din himself. In this connection, he relied upon the circumstances that in the original plaint filed by Jalal Din he had not challenged the correctness of the order, dated 3-3-1967 and, in fact, the averments of paragraph 3 of the said plaint showed that the plaintiff was agreeable to the construction of the watercourse through his area.

The appellant has also omitted to get the original plaint printed and included in the paper-book with the result that he is unable to refute the inference drawn by the learned Judge in the High Court with regard to the contents of paragraph 3 of the original plaint. Nor has he pointed out any other material on the record before us to show that the finding of the High Court on this point is not well-founded. In these circumstances, the contention raised by the appellant, for whose consideration leave was granted by this Court, namely, whether the finding of the learned Single Judge that the grandson of the deceased had given consent was erroneous, has not been established before us by the appellant.

The result is that this appeal must fail and is, accordingly, dismissed hereby. However, sine only respondent No.1 (Muhammad Hussain) has appeared in person before us and none of his counsel appeared to contest the appeal, there shall be no order as to costs.

M. Z. M. Appeal dismissed.

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