WEST PAKISTAN PROVINCE Versus NAWAB KHAN

A special charge of Rs.34,340.63 was levied by the order dated 29‑5‑196? passed by the Kirana Sub‑Division, Sargodha on the concerned land‑owners whose lands had been unauthorisedly irrigated in consequence of tampering of out‑let No. R.D. 81020‑R, Rajbah Kirana. An appeal filed there against having been accepted only partially on 11‑8‑1962 by the Additional Commissioner into reducing the charge by one‑half, some of the said land‑owners from Chak Nos. 84 and 89 S.B. brought a suit on 11‑1‑1963 for declaration that those orders are illegal, without jurisdiction and ineffective. They also claimed a decree of perpetual injunction ,for restraining recovery of amount from them. Defendant contested the suit by denying the assertions of the plaintiffs and also took objections with regard to the jurisdiction of the civil Court and the form of the suit. Only four issues, inclusive of the relief, were set down for trial. First two issues covered the technical objection and Issue No. 3 alone related to the merit of the suit. In the course of evidence only Nawab Khan, one of the plaintiffs, entered the witness‑box to make statement in support of the case set up. In defence, in addition to examining two witnesses, 15 documents were also got exhibited which also included notices issued for service of the land‑owners whose lands had benefited in being unauthorisedly irrigated in consequence of the tampering with the outlet. After due consideration of the evidence of the parties, learned trial Judge held that notices were duly issued to the plaintiffs who had even made representation which had, however, not been accepted by the Divisional Canal Officer and, hence, it could not be said that the plaintiffs had been punished only unheard. Since the other objections of the plaintiffs had not been proved by any evidence, therefore, after repelling both the technical objections raised by the defendant under Issue Nos. 1 and 2, learned trial Judge dismissed the suit by answering issue No. 3 against the plaintiffs, vide his judgment dated 19‑5‑1964.

2. Their appeal was heard by the learned District Judge who reconsidered the evidence and while upholding the trial Court's view with regard to service of the plaintiffs, differed with the view that charge may have been levied for the period of one month immediately preceding 4‑9‑1960 and preferred to accept the uncorroborated statement of one of the plaintiffs that the out let had been damaged by some unknown person only on 4‑9‑1960; because, in his view, it had remained unrebutted and even though he himself held on the basis of section 33 of the Canal and Drainage Act that in cases where the person responsible for the damage cannot be identified, there a joint liability of the land‑owners for the charges is undeniable, yet, he straight out accepted the appeal into granting the decrees prayed for by reversing the decree of dismissal of suit passed by the trial Court by means of his judgment dated 2‑11‑1965.

3. The defendant‑Province has now come up to this Court in this Second Appeal to challenge the appellate decree. There is no doubt that the judgment passed in the appeal below is self‑contradictory and even conjectural. Moreover, neither has the entire evidence existing on the record been attended to nor have the reasons contained in the trial Court's ,Judgment been adverted to before reversing its decree. Learned counsel for the defendant‑appellant has placed heavy reliance on section 33 of the Canal and Drainage Act, for the responsibility for this charge be falling the plaintiffs as the beneficiaries of illicit irrigation because the actual accused responsible for tempering with the out let had remained untraced. Learned counsel for the plaintiff‑respondents has not been able to refute the contention and has submitted that this is not an untraced case because one Abdul Ghafoor was even challaned in that behalf. He, however, was discharged from the case by the concerned Magistrate on 28‑2-1961 vide. Exh. P.1 and there has not been pointed out any direct evidence to have been led on the point. Exh. 1 is not relevant in a civil Court for tracing down the liability or otherwise and can be used as a proof of the fact merely that he was challaned and discharged. Hence, the liability of the plaintiff-respondents for the special charge levied against them is unscapable.

4. For the foregoing reason the decree passed in the appeal blow is not sustainable in law. This second appeal is hence allowed and the impugned decree passed in the appeal below is set aside by restoring that of the trial Court with regard to dismissal of the respondents. Costs all along will also be born by them.

H.B.T./W-44/L Appeal allowed.