IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Revision Application No.S-37 of 2012

Applicants        :  Province of Sindh & another, through

                             Mr. Abdul Hamid Bhurgri, Additional A.G. Sindh.                 

Respondents    :  Raheemdad Mahar & others.

Date of hearing       :  19-01-2023.

Date of decision     :   23-01-2023.

O R D E R

Adnan Iqbal Chaudhry, J.- The Province seeks interference in concurrent judgments/decrees whereby damages of Rs. 48,000/- were awarded against it while restraining the Irrigation Department from damaging the suit land of the Respondents 1 to 5 by releasing excessive water in the watercourse adjacent to it.

2.       The case of the Plaintiffs was that at the instance of the Fisheries Department, the Irrigation Department releases excessive water in the watercourse which overflows and inundates the agricultural land of the Plaintiffs depriving them of its agricultural use. Apart from a declaration and injunction, damages of Rs. 48,000/- were also sought. The Defendants did not lead evidence.  As noted first above, the suit was decreed for injunction and damages. 

3.       The Respondents were served but did not enter appearance in this revision. Heard the learned Additional A.G. Sindh and perused the record.

4.       The learned Additional A.G. Sindh had confined his submissions against the award of damages. He submitted that the claim for damages was time-barred as it was the Plaintiffs’ own case that the suit land was inundated by water for the last 30 years; that there was no evidence to show that the Plaintiffs had ever approached the Irrigation Department with any complaint, nor was there any evidence of the loss/damage of Rs. 48,000/- allegedly suffered.

5.       Apparently, it was the Plaintiffs’ case in evidence that due to the continuous overflowing of the watercourse their land had remained under water for the last 30 years or so. While the Courts below treated that as a recurring cause of action for granting an injunction, there was nothing to show that prior to the suit the Plaintiffs had made any claim for compensation to the Irrigation Department under section 31 of the Sindh Irrigation Act, 1879, or that they had ever intended to use the suit land for agricultural purpose. Therefore, the award of damages on the ground that the Plaintiffs were deprived of agricultural produce from the land was not supported by the evidence and was only conjecture.

6.       For the foregoing reasons, the impugned judgments/decree suffer from a mis-reading of the evidence. Consequently, the judgments and decrees dated 19-05-2011 and 21-02-2012, passed respectively by the 2^nd Senior Civil Judge Shikarpur in F.C Suit No. 08/2009 and the 3^rd Additional District Judge Shikarpur in Civil Appeal No. 15/2011 are set-aside for the award of damages but remain intact for the injunction granted. Revision application is allowed in said terms.

                                                                                                JUDGE

Qazi Tahir PA/*