Law: Civil Procedure Code (V of 1908)

Section: O.XLVII,r.11

Canal and Drainage Act (VIII of 1873)- Read with Civil Procedure Code (V of 1908), O. XLVII, r. 11 Review--Scope-Anamolous position likely to arise if impugned decree passed by trial Court kept intact and not modified-Review petition accepted-[Bashir Ahmad v. Abdul Karim 1976 S C M R 417 and Amir Khan v. Controller of Estate Duty P L D 1962 S C 335 not applicable].[Review]. Bashir Ahrnad v. Abdul Karim 1976 S C M R 417 and Amir Khan v. Controller of Estate Duty P L D 1962 S C 335 not applicable. THIS JUDGMENT DELIVERED BY:MUHAMMAD ABDUL GHAFOOR KHAN LODHI, JUSTICE---.-- This review petition emanates from the judgment dated 22-3-76, whereby the revision brought by the petitioners arising from the concurrent finding recorded by the learned District Judge, Lyallpur dated 18-4-75 and the learned Civil Judge, III Class, Samundari, was dismissed. The suit of the respondents for declaration to the effect that they were entitled to get 'nikle water' for their lands situated in Square No. 16, Killas Nos. 18, 23, 21 and 11 to the exclusion of the petitioners, and that the order dated 2-3-72 of the D. C. O. Burala Division, Lyallpur, was illegal, ultra vires unjust and not binding upon them with perpetual injunction restraining the petitioners from acting under the order of the D. C. O. had been dismissed by the learned trial Judge. 2. The facts are given in detail in the impugned judgment and need not be recapitulated. Two points are involved, one is whether the facts and circumstances changed after the D. C. O. had in. 1967 dismissed the appeal of Din Muhammad, petitioner No. 1 and second is whether Killa No. 11 belonging to the respondent takes water from the watercourse in dispute and that the said Killa is situated on the last. The case of the parties was not properly handled in the Courts below with the result that necessary points were not taken up in the pleadings and the evidence. No doubt, in the orders of the S. D. C. O. and the D. C. O., it is mentioned that the petitioners had started joint cultivation of their lands with the result that the period of turn of their water increased, making deduction of time in view of Nikal feasible but the petitioners did not…

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