Decided on May 11,1901



MACNAGHTEN, J. - (1.) THE substantial question to be determined in this case is, What are the respective rights of the appellants (who were plaintiffs in the suit) on the one hand and the Government on the other in the Hajiwah Canal-a work constructed many years ago under the sanction of the Government by the grandfather and the father of the plaintiffs? Is the canal for the greater part of its course now vested absolutely in the Government to the exclusion of the representatives of the original undertakers (as both the Courts below have held), or have the appellants as such representatives, in common with their elder brother the second respondent, a proprietary right in the whole of the canal, subject only to a special privilege conferred upon or reserved to the Government by a sanad dated March 20, 1886?
(2.) THE Hajiwah Canal is an important irrigation work in the district of Multan. It is some 50 miles long, about 40 feet wide, and more than 10 feet in depth. It is supplied with water from the Sutlej, and extends from its intake on that river to certain lands in Tahsil Mailsi, which were formerly jungle or waste lands belonging to the Government, and known as bar-barini lands from the circumstance that their occasional cultivation depended upon rainfall. It seems that in 1860 the revenue of these lands, which were inhabited mainly by nomad tribes, was in lease to one Ghulam Mustapha Khan for the period of the then current settlement. On May 5 of that year Mustapha Khan presented a petition to Government stating that, "with a view to render the land culturable and facilitate the payment of the lease money and for the benefit of the public," he, "at the expense of thousands of rupees from his own pocket," was "willing to dig two water cuts, one for the irrigation of the land in Ludan, which is occasionally watered from the Sutlej, and the other for irrigating the land Khai, a Government jungle, from the same river." He therefore prayed that he might be granted permission to construct two nalas. The order on the petition was that the original should be sent to the Deputy Commissioner of Multan with a request that he would have a plan of the nalas in question prepared through the Khan. Under date of August 30, 1861, there is a memorandum or report among the Government records to the following effect: "A detailed plan of both the nalas, showing the name and mark of each nala, &c, has been prepared. The persons whose lands are to be occupied by the nalas are all agreeable to the construction thereof. As regards the compensation (hakrasi) payable to the proprietors of the lands to be occupied by the nalas, the Khan has, with their consent, which has been obtained in a lawful manner, come to a settlement that proposals will be made at the time of opening of the nalas. Under these circumstances the opening of both the nalas should be allowed, because a considerable area of land will thus be. rendered fit for cultivation, and there is every hope of increase in the Government revenue." Acting on this report, the Commissioner sanctioned the project on September 4, 1861. There seems to be no other document or record in existence throwing light on the circumstances under which the construction of the Hajiwah Canal was authorized, or expressing the commands or intentions of the Government with regard to it.
(3.) HAVING thus obtained the sanction of the Government, Ghulam Mustapha Khan commenced the construction of the canal. It was completed after his death by his son Ghulam Kadir Khan, the father of the plaintiffs and the second respondent. The canal was constructed partly on Government land and partly on the land of private owners under arrangements with them. The work is said to have cost in all about nine lakhs of rupees. The annual cost of maintenance and clearance appears to be over Rs. 8000.;

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