2010 Y L R 2479
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
SECRETARY GOVERNMENT OF BALOCHISTAN, IRRIGATION DEPARTMENT and
5 others --- Petitioners
Versus
CHANDIAZAI MENGAL TRIBE through Mal ik Ghulam Qadir and 16 others ---
Respondents
Civil Revision No. 200 of 2003, decided on 6th April, 2010.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 55 ---Suit for declaration and mandatory injunction ---Both Trial Court and
Appellate Court ha d concurrently decreed the suit filed by the plaintiff ---Plaintiff was
aggrieved of demolition of bund raised by them on `bore nala' by the defendants without prior
notice and without legal authority ---Plaintiff claimed its right on basis of award given by sole
arbitrator in year 1921, while judgment was given in the year 1922 ---Plaintiff had prayed for
declaration of their title and right and injunction directing the official defendants to' restore
bore nala/bund to its previous shape/position at their exp enses ---Both courts had completely
failed to appreciate the admitted facts, but relied only on award/judgment given in years 1921
& 1922 ---Plaintiff was supposed to establish that it had legal right to raise the construction of
disputed dam, even in view o f the fact that after construction of proper water scheme in 1962,
the right to raise construction of dam, even temporary one by the plaintiff on basis of award
of 1921 remained in existence ---No such evidence had been brought on record by the plaintiff
to that effect and instead only concealment of facts were made ---Both the courts while
decreeing the suit did not realize the actual dispute and gave findings which were not
supported by the evidence and material on record ---Plaintiff had completely failed t o
establish its right for raising construction of dam in question on said bore nala, while the
concerned Authorities had the right to demolish any unauthorized construction, affecting of
flow of water irrigating the lands of thousands of persons in the are a---Both courts had failed
to appreciate the facts properly, also misread the evidence on record ---Decree passed by the
Trial Court and upheld by Appellate Court being not justified, same was set aside and suit
filed by the plaintiff was dismissed.
Amanullah Tareen, A.A. -G. for Petitioners.
Miss Sarwat Hina for Respondents.
Date of hearing: 13th October, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The instant petition has been filed by the petitioners
being aggrieved of judgment an d decree made on 19 -1-2002 by Civil Judge, Noushki and
order dated 21 -4-2003 made by District Judge, Noushki, whereby the suit filed by respondent
No.1 was decreed and their appeal was dismissed by the appellate Court, upholding the
decree of trial Court. It is their contention that the courts below misread and misappreciated
the material available on record, while the appeal was wrongly dismissed on point of
limitation without considering and deciding the application for condonation of delay. Further,
this fact is not considered by the courts below that the Government has spent million of
rupees on construction and maintenance of Bore Nala Flow Irrigation Scheme, while due to
decree the rights of other parties are affected, as such irreparable loss would ca use to the
Government and other parties. Furthermore, said Nala was already completed in 1962, while
suit was filed much later in time, this aspect is also not considered by the courts below. They
have prayed for setting aside of both the orders and dismis sal of the suit.
After hearing the counsel for the parties, record is perused. The perusal whereof reveals that a
suit for declaration, mandatory injunction and consequential relief was filed by respondent
No.1/ plaintiff, which was contested by the pe titioners and respondents Nos.2, 3 &
4/defendants. After recording of evidence and hearing the parties the suit was decided
through judgment dated 19 -1-2002, whereby the suit was decreed in favour of respondent
No.1/plaintiff against the defendants. Being aggrieved of the same three separate appeals
were filed by the present petitioners and respondent No.3. These three appeals were decided
through common judgment made on 21 -4-2003, whereby all the three appeals were dismissed
being hopelessly time barred. S till feeling aggrieved of the same the instant petition has been
filed.
The perusal of impugned order dated 21 -4-2003 reveals that it is held therein by the learned
appellate Court that the appeal filed by Secretary Irrigation (petitioner No.1) is barr ed by 65
days, whereas appeal filed by District Co -ordination Officer (petitioners No.4, 5 & 6) is
barred by 46 days, thus appeals are barred by time. Further, held that the application filed for
condonation of delay by Secretary Irrigation did not provide any cogent reason, while DCO
has not filed application to said effect. However, the third appeal was held to be filed within
time, thus decided on merits.
It is difficult to ascertain through this order that when the said two appeals were filed, what
was the provided period and in case of delay what ground was taken while seeking
condonation of delay by the appellants/present petitioners. As the issue of limitation goes to
the very root of any proceedings which is required to be decided cautiously and carefully, as
maintainability of a suit or appeal depends on the same. In present case the appellate Court
decided point of limitation in haste without discussing the issue properly, which was required
to be done. No reasons are given for holding the two a ppeals to be time barred and rejecting
the reasons for condoning the delay. Rather the third appeal was dismissed being devoid of
merits. As three appeals against same judgment and decree were filed, which were disposed
of through one order, as there canno t be two views. Thus in the circumstances, it would be
proper for the appellate Court, while condoning the delay, decide all the three appeals on
merits, which it failed to do. Apart from the same keeping in view the sensitivity of the
matter as public int erest is involved the learned appellate Court must have condoned the
delay and decide the remaining two appeals also on merits to resolve the issue pending
adjudication for quite a time.
In present case the respondent No.1/plaintiff is aggrieved of dem olition of Bund, raised by
them on Bore Nala by the defendants Nos.1 to 3/petitioners Nos.4, 5 and 6, on 23 -2-1999
without prior notice and without legal authority. Due to this act they suffered irreparable loss
and their cultivated crops were destroyed. T he plaintiffs claimed their right on basis of Award
given by sole Arbitrator namely Moulvi Muhammad Hassan on 27 -11-1921, while judgment
was also given on 3 -1-1922 B by Political Agent upholding the Award. The plaintiff tribe
prayed for declaration of thei r title and right and injunction to the effect that directing the
official defendants/present petitioners to restore Bore Nala/Bund to its previous
shape/position at their (petitioners) expenses. The suit was contested by the defendants/
petitioners and re spondents No.2 to 4.
Keeping in view the pleadings of the parties some facts are admitted by all the parties. All the
four tribes i.e. Chandiazai, Badini, Jamaldini and Mengal tribe owned lands in the area which
are in their cultivating possession, the ir ownership and possession is not disputed. While said
Bore Nala is the source of irrigation of their lands. The dispute arose between them only in
respect of water, which was resolved through sole arbitrator namely Muhammad Hassan,
while award was given on 27 -11-1921. This award was upheld/made rule of court through
order dated 3 -1-1922 by Political Agent. It is further an admitted fact that a water supply
scheme was made by the Government in 1962 in the area. While Bore Nala Head Works was
constructed by Irrigation Department with consent of the respective Zamindars and
beneficiaries in said year. The water is admittedly utilized by them in all these years as per
decision taken by the Authorities in 1962.
The plaintiff/respondent No.1 in their suit su ppressed the facts regarding construction of Dam
on Nala by Irrigation Authorities in year 1962. During course of cross -examination the
attorney to the plaintiff/ respondent No.1 specifically admitted that no tribe made any
objection on construction of Dam by the Authorities in 1962. He further admitted that since
1962 the water of Bore Nala is distributed amongst them through said official Dam. But
contrary to the same in their suit they only relied and claimed their right of water on basis of
mentioned Aw ard given in year 1921. The plaintiff/respondent No.1 did not come to this
court with clean hands.
The learned trial as well as appellate Courts, though made lengthy discussion on facts and
evidence, but completely failed to appreciate the admitted fac ts. They rather relied only on
Award and judgment given in years 1921 & 1922, while ascertained the right of the plaintiff
only, without considering the rights given to the other parties even by said Award thereby
affecting the rights of the remaining part ies. It has also been wrongly held that till present the
previous decisions remain in field. Both the courts below failed to appreciate the fact that as
the parties having vested interest in right of water, when consented for construction of Dam
on Bore Na la, which was admittedly constructed in 1962, whereafter, water supplied by the
Authorities, without any objections from any corner in all these years and irrigating the lands,
thus in the circumstances there was no occasion of holding that the said Award and judgment
are still in field.
Furthermore, though the plaintiff/ respondent No.1 had asserted that they raised construction
of disputed Bund in 1975 with no objection from any side, but no positive evidence has come
on record to this effect from the ir side. Rather evidence is to the effect that the disputed Dam
was demolished by the concerned Authorities in 1999. It is the plaintiff/respondent No.1 who
has to establish that it had legal right to raise the construction of disputed Dam even in view
of the fact that after construction of proper water scheme in 1962, the right to raise
construction of Dam even temporary by the plaintiff/respondent No.1 on basis of Award of
1921 remain in existence. Rather no such evidence has brought on record by the plai ntiff/
respondent No.1 to this effect, instead of the same only concealment of facts are made. The
learned trial as well as appellate Court simply relied on the said Award and judgment, which
in the circumstances are not in field. Further, both the courts while decreeing the suit do not
realize the actual dispute, while gave findings which are also not supported by the evidence
and material on record. The plaintiff/ respondent No.1 completely failed to establish their
right for raising construction of Dam i n question on said Bore Nala, while the concerned
Authorities have the right to demolish any unauthorized construction, affecting the flow of
water irrigating the lands of thousands of persons in the area. In case the plaintiff/respondent
No.1 are deprived of their share of water by any one they may agitate the same and avail
remedy provided to them under law. But at present there was no occasion of
raising/construction of Dam on a regular water supply scheme thereby disturbing the rights of
the public at l arge. The trial and appellate Courts failed to appreciate the facts properly, also
misread the evidence present on record. The decree E passed by the trial Court and upheld by
the appellate Court are erroneous as discussed above, thus liable to be set asid e.
Keeping in view the above discussion the petition is hereby accepted. The impugned
judgment made on 21 -4-2003 by District Judge, Noushki and judgment and decree made on
19-1-2002 by Civil Judge, Noushki are hereby set aside. The suit filed by the pl aintiff/
respondent No.1 is dismissed being devoid of merits.
No order as to costs.
H.B.T./52/Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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