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Letters Patent Appeal No. 79 of 1954, decided on 28th January 1960.
‑point maybe allowed to be raised even at stage of Letters Patent appeal though not raised at any stage before.
Persons interested"‑Persons not affected by alteration of water‑course not such persons.
‑Person applying must be a party to dispute and not necessarily "person interested".
Second appeal ‑finding of fact‑Lower Appellate Court holding that some evidence had been "ignored" and some other had been "misinter preted"‑Ground for interference in finding.
Mahmud Ali Qasuri for Appellants.
Said Akbar for Muhammad Amin Khan for Respondents.
Date of hearing : 28th January 1960.
‑The appellants in this Letters Patent Appeal are legal representatives of one Imam Din, owner of square No. 49 in Chak No. 377 of Toba Tek Singh Tahsil, who made an application to the Divisional Canal Officer under section 20 of the Canal and Drainage Act for the alteration of a water‑course which passed across his square diagonally, on the ground that with each soil clearance the level of his land on each side of the water‑course was rising and that otherwise also both irrigation and ploughing had become more difficult by reason of the land being split into two parts. The water‑course which then existed is shown in the plan Exh. P. 1 as A‑B‑C‑D‑E‑F‑G‑H‑1‑J, and the application was concerned only with the portion D‑E which passed through his square. At 'D' the water‑course branched off to the north also, along the line D‑K‑L. The applicant proposed that at the point D' that part of the water‑course which crossed his land should deflect to the north until the end of his square at point 'K' and turn east and join the point E' again. The new water‑course would thus represent two sides of a triangle while the old represented the third side.
2. This application was treated as one under section 68 of the Act. and accepted, with the result that persons interested in it beyond the point E' brought a suit under the same section: The suit was decreed and an appeal by the sons of Imam Din, who had, by this time, died. failed in the District Court. A second appeal in the High Court also having failed, the appellants have come on the Letters Patent side.
3. Section 68 is to the following effect :‑
"Whenever a difference arises between two or more persons in regard to their mutual rights or liabilities in respect of the use, construction or maintenance of a water‑course, any such person may apply in writing to the Divisional Canal Officer stating the matter in dispute. Such officer shall thereupon give notice to the other persons interested that, on a day to be named in such notice he will proceed to inquire into the said matter. And, after such inquiry, he shall pass his order thereon, unless he transfers (as he is hereby empowered to do) the matter to the Collector,' who shall thereupon inquire into and pass his order on the said matter.
"Such order shall be final as to the use or distribution of water for any crop sown or growing at the time when such order is made, and shall thereafter remain in force until set aside by the decree of a Civil Court."
4. The trial Court struck the following issue : ‑
Whether the order of the Divisional Canal Officer, dated 10th June 1952, sanctioning the erection of a new water‑course in place of the old one, is illegal, inoperative and void as against the plaintiffs vide grounds mentioned in paragraph 9 of the plaint (O. P.)
And decreed the suit on the following three grounds
(1) That some "interested" persons had not been served by the Divisional Canal Officer.
(2) that Imam Din was not a person "interested" within the meaning of section 68 and, therefore, could not make an application, and
(3) that the plaintiffs had been adversely affected by the deviation in the course of the khal.
The District Judge upheld these findings. In the High Court, before the Judge in. Chambers the appellants' counsel raised a new point, namely, that the order of the Divisional Canal Officer was one sanctioning the construction of a new water‑course and, therefore, fell within the ambit of section 21 and not of section 68, the civil suit being consequently incom petent. The learned Judge repelled this contention merely on the ground that it had not been raised in the first two Courts. With great respect, we wish to say that if we had found any substance in the contention we would have entertained it even at the present stage, because it concerned a question of law.
5. On other matters, the learned Single Judge observed that since "the findings forming the basis both of the original decree and of the decree of the lower Appellate Court are findings of fact and sufficient ground has not been shown for interfering with them in second appeal", the appeal should be dismissed.
6. We are doubtful whether a dispute in respect of the alteration of a water‑course between two or more persons is a dispute "in regard to their mutual rights and liabilities in respect of the use, construction or maintenance of a water‑course", but since the suit has been filed only on this basis and we have come to the conclusion that it should be dismissed, we do not go into the question of its competency.
7. Of the three points on which the suit was decreed, the first two are apparently questions of law. Section 68 requires that when a dispute arises, the Canal Officer should give notice "to the other persons interested." The plaintiffs said in their plaint that the owners of squares Nos. 48, 41, 36 and 30, which lay on the left side of the first part of the water‑course D‑K‑L, had not been served We‑ will assume that they were not served, but not one of these persons has come forward to say that he has any objection to the new water‑courses. In fact, some of them appeared on the defendants' side to support their case. The Canal Officer had jurisdiction to adjudicate upon the dispute and if he took a decision which affected parties who were not before him, then the best that can be said for the plaintiffs is that the decision will not be binding on those parties and they could have brought a suit on that ground also under section 68. We do not, however, see how the owners of squares Nos. 48, 41; 36 and 30 and "interested". So far as their lands go, they were already irrigated by the water‑course D‑K‑L and the diversion of D‑E towards D‑K would neither diminish their supply nor affect their turn of water injuriously. These are not consequently persons "interested" within the meaning of section 68.
8. The second finding was that Imam Din was not a person interested. Now, section 68 nowhere says that an applicant under that section should be a person "interested". It merely says that whenever a difference arises between two or more persons in regard to certain matters, " any such person may apply" to the Canal Officer, stating the matter in dispute Sinee Imam Din was a party to the dispute, he could make the application. But even if Imam Din had to be a. person "interested" then the mere fact that he receives his supply at point D' does not terminate his interest in the water‑course beyond the point D'.
If beyond this point the water‑course injures him, he is interested though in a different manner.
9. Lastly, although the question whether the plaintiffs had been affected adversely by the neviation in the course of the Khal is a question of fact since the judgment of the Additional District Judge shows that some material evidence has been ignored and that some other evidence has been misinterpreted, we find reasonable ground for interference. But before we discuss the judgment, we wish to reproduce a part of the order of the Divisional Canal Officer against which the suit was instituted. This order is Exh. P. 3 and in substance reads thus :‑
"The case for the owner of square No. 49 is that, firstly he faces great difficulty in ploughing land and irrigating it sometimes on one side of the water‑course and sometimes on the other that, secondly, soil deposit is thrown into his land at the time of clearance with result that the level of his land is gradually raised and that thirdly, he has three sons and at the time of partition among them the square will be divided diagonally. The opposite‑party objected that it will not be Possible for them to irrigate. their land from the new channel because their land which came after square No. 49 was on a higher level. After recording these objections, I went to the spot on the 6th of June 1952, to see whether the objection was justified. I allowed water to go into the new channel and found that from killa No. 1 in square No. 49 to killa No. 5 in the same square it took only eight minutes notwithstanding that the water‑course had been freshly dug. When it has been used for some time, the flow will be quicker still. I then allowed the water to flow up to square No. 27 and watched its flow for a considerable time. The flow was very satisfactory. I am satisfied that the new channel will irrigate all land properly and remove the applicant's, difficulties without causing loss to the opponents. Their objections appear to be based on personal grounds because the new water‑course can irrigate their land very well."
10. Now, the plaintiffs produced five witnesses only, including one of the plaintiffs Rahmatullah and none of their other four witnesses said anything about the new water‑course being injurious to the plaintiff. Rahmatullah plaintiff appearing as P.W. 5 made only the following statement :‑
"The new water‑course does not irrigate our land properly."
11. On the question of injury, the trial Court says : ‑
"The plaintiffs have not led much evidence on this point to prove that their lands cannot be properly irrigated by the new water‑course. On the other hand the defendant bad led evidence to the effect that the new water‑course would irrigate the lands of the plaintiffs in much better manner than the old water‑course. The evidence led by the defendant cannot be deemed as disinterested, including the statement of Ziledar of Canal. The defendant gains by the erection of a new khal and abolition of the old one** * * ** * * * ** * * ** * * ** * * ** * * ** * *.
The Canal Ziledar has to support the action of his own department. As such it cannot be easily concluded that the defendant's evidence is of a reliable and trustworthy nature. The plaintiffs are the best custodians of their own interest and I think, if by the new arrangement they are likely to gain, they would be the last persons to oppose this new arrangement, and the fact that they are opposing this new arrangement raises a very strong presumption that they do not hope to gain by it."
Thus the deciding factor, in the trial Court's opinion, is the fact that if the plaintiffs had been likely to gain, they would not have opposed the new arrangement. There is no finding that the plaintiffs would be injured by the new arrangement, except that it has been observed at a later stage that there are at least three bends in the new channel. Again, the judgment observes : ‑
"It appears that the erection of a new water‑course has been ordered not in the interest of the persons who irrigate their lands of the defendant from the damage which is being caused by the passing of the water‑course D and E through the land of the defendant."
In other words, although the trial Court is of the opinion that damage is being caused to the defendants, since no gain (by which we should understand extra gain) is caused to the plaintiffs, the new water‑course should be disallowed.
12. The Additional District Judge attends to this part of the case in the following passage :-
"On merits also, the order of the Divisional Canal Officer cannot be upheld. All the owners of the square who irrigate their land from portion. E' onwards certainly stand to suffer as a result of the deviation of the water‑course. Originally this water‑course ran in a straight line from point C' to F' as per plan Exh. P. 1. As a result of the order in question there are now three turnings in between, one of which is at a right angle.‑ No expert knowledge is necessary in order to conclude that the flow of water is certainly impeded in case there are sharp turnings in the way. Therefore, the opinion of the Ziledar (D. W. 10) or that of the Divisional Canal Officer expressed in Exh. P. 3, to the effect that the flow of water is not adversely affected, have no bearing on the point D. W. 10 further admitted that the portion of the water‑course now sanctioned, from point K to E is partly above the ground level also. This would mean that there would be every .time a possibility of the water breaking through its banks, and the plaintiffs will be put to the additional trouble and botheration of keeping perpetual watch over this portion."
13. Now, in the first place, the learned Additional District Judge has excluded from consideration the opinion of two canal officers who saw the water flowing at the spot on the ground that their opinion has no bearing on the point ; in the second place, the Ziledar, who appeared as D. W. 10, when he stated that a part of the new water‑course was above the ground level, did not mean that "there would be every time a possibility of the water breaking through its banks", as the learned Additional District Judge thinks. The level of the water‑course at that particular place is above the ground level because the ground level there is perhaps lower than the bottom of the rest of the water‑course. But a water‑course has always high embankments and in course of time they become firm. The plaintiffs themselves have not objected to the water‑course on this ground. The question put to the witness merely intended to show that the water‑course was at a certain point on a higher level than the land and that consequently the flow of water would not be smooth. That question, however, was misconceived because, if a part of the water‑course is on higher level than the surrounding land, then it must have been deliberately left at a higher level so as to ensure even flow. The argument based on the three turnings loses force when it is borne in mind that if water is delayed by a few minutes, it makes no difference to the duration of the plaintiffs' turn. The injury to them, if any, is almost inappreciable, and has no proportion to the injury from which the new arrangement saves the defendant.
14. We, therefore, do not treat the findings of fact as binding onus, and accepting the opinion of the Divisional Canal Officer who had the advantage of spot inspection and whose opinion has not been rebutted, we allow the appeal and dismiss the suit with costs throughout. The order of the Divisional Canal Officer is restored.
A. H.
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