Law:

Section:

FAZAL KARIM, J.---This Intra-Court Appeal by the appellant Shamas-ud-Din, alias Shamsoo has come from a judgment of the learned Single Judge dated 3-7-1991 dismissing the appellant's petition under Article 199 of the Constitution.

2.          The facts are these. The appellant is owner of Killas Nos.13/3 and 17/2 of Square N0.145 and the respondents Mst. Rafiqan and Abdul Majid are owners of Killas Nos.1, 14, 15, 16 and 17 of Square No.145. Claiming that there was a watercourse passing through Killas Nos.14/17, 15/16 and 17/1 and that watercourse irrigated the appellant's land and alleging that the watercourse had been demolished by Mst. Rafiqan and Abdul Majid respondents (to be referred to as the respondent owners), the appellant made an! application under section 68-A of the Canal and Drainage Act, 1873 to be referred to as the Act). The parties are not agreed as to whether that application was made to the Sub-Divisional Canal Officer or the Divisional Canal Officer, the case of the respondent owners being that the application was made to the Sub Divisional Canal Officer and was therefore, incompetent, as under section 68-A of the Act, it had to be made to the Divisional Canal Officer, but in the facts of the case, and the view we propose to take of section 68-A of the Act, we do not think it necessary to decide that question. It appears from the order of the Divisional Canal Officer dated 29-8-1989 that an inquiry was held by the Ziladar and the Sub-Divisional Canal Officer; that they were of the opinion that there had been a watercourse in the respondent owners' land mentioned above; that there was another watercourse but that watercourse had been constructed after the Deputy Collector had visited the spot to change the position and to complicate the- matter; that the disputed watercourse - was the nearest watercourse to the appellant's land and that it was inconvenient to the appellant to irrigate his land from the "new watercourse". The Divisional Canal Officer, therefore held that there had existed a watercourse in the respondent owners' land, that the same had been irrigating the appellant's land and that it had been demolished by the respondent owners and ordered that the same should be restored.

3.          Aggrieved by that order the respondent Abdul Majid and three others instituted a civil suit. They also prayed for a temporary injunction. Their application for temporary injunction was dismissed and their plaint was rejected under Order VII, Rule 11C.P.C. on 17-9-1989, the learned Civil Judge being of the view that no civil suit lay against the Divisional Canal Officer's order dated 29-8-1989. Their appeal against that order was dismissed on 21-10-1989 and a revision petition under section 115, C.P.C. was dismissed by an order of a learned Single Judge of this Court dated 1-11-1989.