ABDUL QAYYUM and another vs NIAZ MUHAMMAD and another

' JAVID IQBAL, J.---This petition for leave has been filed by Abdul Qayyum and Khushi Muhammad petitioners against Niaz Muhammad respondent No,1.

2. Briefly the facts are that the petitioners are owners of Killa Nos. 23 and 24 in Square No,64 as shown in the site plan at page 63 of the paper book. Respondent No,1 owns Killa Nos. 17 and 18 in the same square. There is one private watercourse which runs between Killa Nos. 23 and 24. The petitioners dismantled it whereupon respondent No,1 moved the Court of the Divisional Canal Officer by putting an application under section 68-A of the Canal and Drainage Act and obtained an order for the excavation of . The same watercourse for irrigation of his Killa Nos. 17 and 18.

Aggrieved by the same the petitioners filed a civil suit before the Senior Civil Judge, Faisalabad for a declaration that the order passed by the Divisional Canal Officer was illegal and without jurisdiction. The Civil Court vide its judgment, dated 5th July 1984 decreed the suit in favour of the petitioners holding that section 68-A of the Act was merely an ancillary and that it could only be pressed in a matter which was already pending before the Canal authorities under section 68 of the Act. On appeal filed by respondent No,1 the Additional District Judge, Faisalabad vide his judgment, dated 7th November, 1984 maintained the judgment of the Civil Court and further held that the watercourse in question was a private watercourse and respondent No,1 had not acquired any right of easement to use the same. As such the Divisional Canal Officer had passed an order which was illegal and without jurisdiction. Thereafter, respondent No,1 filed a revision petition before the Lahore High Court, Lahore in which the judgments of the Courts below were set aside on the ground that the order passed by the Divisional Canal Officer was only of provisional nature and that since final and conclusive order was yet to be passed under section 68 the suit filed by the petitioners was premature.

3. It was contended by the learned counsel for the petitioners that a private watercourse was not covered by the definition of watercourse under the Canal and Drainage Act. For a watercourse as such had to be sanctioned in the form Warabandi by the Canal authorities. It was also contended that whenever there was dispute respecting such a watercourse between the parties, an application can be moved under section 68 of the Canal and Drainage Act before the Sub- Divisional Canal Officer and that while this matter is pending provisional relief can be claimed under section 68-A from the Divisional Canal Officer. However, it was argued that the watercourse in question was a private one and that therefore the order obtained by respondent No,1 under section 68-A of the Act was illegal also, as no proceedings were pending under section 68. It was as such rightly set aside by the two Courts below. According to the learned counsel it should have not been interfered with while exercising revisional jurisdiction by the learned Single Judge of the Lahore High Court, Lahore.

4. We have heard learned counsel for the petitioners as well as caveator respondent No,1 and we grant leave in this case to determine the question as to whether or not the watercourse in dispute is a private one, and therefore, is a dispute pertaining to that or whether or not proceedings could be taken under section 68 or 68-A of the Canal and Drainage Act. Security for costs to be deposited in the sum of Rs,2,000. The case shall be fixed on the same record with permission to file additional documents, if any. Meanwhile the impugned judgment of the Lahore High Court, Lahore dated 17th May, 1987 shall remain suspended.