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Civil Petition for Special Leave to Appeal No. 407 of 1978, decided on 27th January, 1986.
(From judgment of the Lahore High Court, Lahore, dated 18‑6‑1978 in Civil Revision No. 237 of 1978).
Constitution of Pakistan (1973)‑‑
‑‑‑Art. 185(3)‑‑Petition for leave to appeal against order of High Court whereby respondent's civil revision arising out of disposal of a suit relating to allocation of Nikal (tail water) under Canal and Drainage Act was allowed‑‑Parties entering compromise in writing by which they reached a fair arrangement‑‑Petition converted into appeal and appeal allowed in terms of compromise.
Muhammad Arif, Senior Advocate Supreme Court with Ejaz Ahmad Khan, Advocate‑on‑Record for Petitioners.
Syed Munir Hussain, Advocate Supreme Court with S. Wajid Hussain, Advocate‑on‑Record for Respondents Nos.l and 3.
Date of hearing: 27th January, 1986.
Leave to appeal has been sought from judgment dated 18‑6‑1978 of the Lahore High Court; whereby respondent's Civil Revision Petition arising out of the disposal of a suit relating to the allocation of Nikal (tail water) under the Canal and Drainage Act (No. VIII of
1873), was allowed.
2. After some arguments, the learned counsel for the parties have entered a compromise which having been put into writing; both of them have signed it. The compromise is reproduced below:
"The case of Faiz Muhammad and other petitioners is that they own land in Chak No. 287‑JB Tehsil and District Toba Tek Singh which is irrigated by Outlet No. 2575/11 Rajbah Gudian. Though originally the land owned by the petitioners was at the tail‑end of the watercourse, yet they were not allowed Nikal water by the Canal Authorities, due to their holding too small to meet the requirement of Kitauti i.e. 2 hours and 24 minutes. The respondents were earlier allowed the Nikal water, in 1967, although the Nakka for them preceded the Nakka for the petitioners. Thereafter the petitioners purchased land from other owners and thereby the holding of the petitioners increased from 5 Acres to 91 Acres which could properly meet the requirements for the Kitauti. The petitioners applied for the amendment of the Warabandi to the effect that they be allowed the use of Nikal‑water on account of the increase of their holding in Squares Nos. 38 and 39. After the Canal Authorities final rejected the application of the petitioners by order dated 10‑2‑1 9 7 5 they filed a civil suit which was dismissed on 24‑5‑1977. On appeal a learned Additional District Judge was pleased to decree the suit on 18‑Z‑1978. Respondents, Revision Petition against the judgment/decree of the learned Additional District Judge succeeded on 11‑6‑1978, on the ground that the Instructions for the Guidance of Canal Officers in the Preparation and Modification of Warabandis were directory in nature and that the petitioners could not claim Nikal water as of right.
"Feeling aggrieved of the High Court, Faiz Muhammad and others have preferred the present Civil Petition No. 407 of 1978.
"During the hearing of C.P.No. 407 of 1978 the counsel for the parties having agreed that the parties shall share the Nikal water equally. For this purpose they shall use the Nikal water alternatively i.e. for one week the petitioners shall utilise the entire Nikal‑water and in the succeeding week the respondents shall utilise the same. The Canal Authorities shall adjust the Kitauti‑time accordingly.
(Sd.)
Muhammad Arif,
Advocate for petitioners.
(Sd.)
Syed Munir Hussain,
Advocate for Respondents Nos. 1 to 3".
8. The parties seem to have reached a fair arrangement. This petition is converted into appeal and partly allowed in terms of the compromise. There shall be no order as to costs.
M.Y.H. Appeal partly allowed.
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