Akhauri Thakur Prasad and Others vs Dwarka Singh and Others

Fazl Ali, J.—This is an appeal by all the defendants except one Jadu Singh in a suit instituted by the plaintiffs to recover from them a certain sum of money as damages for loss sustained by them as a result of the diversion of a water channel by the defendants. The plaintiffs and the defendants are interested in two neighbouring villages, named Aganda and Wari, the latter being to the east of the former. It appears that the lands of Aganda are irrigated by means of water which comes through a baha known as Pirtbia Bandh Baha. The baha comes into village Aganda through village Bajaura which is situated immediately to the south of Aganda and in Bajaura the baha bears plot No. 1251 and its eastern embankment bearing No. 1252 lies between Bajaura on the west and Wari on the east.

The appellants cut an opening or khanr in this embankment some time in 1928 and after that they brought a suit for a declaration that the khanr in question remains always open in order to enable the water of the Pirthia Bandh Baha to flow through this khanr to the village Wari. In this suit there was also a prayer for a permanent injunction to restrain the present plaintiffs and other mukarraridars of Aganda from filling up the khanr. This suit was instituted on 10th October 1928, and a temporary injunction was issued by the trial Court during its pendency. The suit was however dismissed on 24th February 1930, and the appeals preferred by the pre-sent defendants against the decision of the trial Court to the District Judge and the High Court were dismissed respectively on 19th January 1931, and 25th October 1933. The present suit was instituted on 19th December 1934.

The plaintiffs allege in this suit that the opening in the bandh continued even after the suit had been decided by the trial Court and that the plaintiffs themselves could not close the opening on account of there being obstruction on the part of the present defendants. Both the Courts below have decreed the suit in part and the defendants other than Jadu Singh have appealed to this Court.

The short point which arises in this appeal may be very briefly stated here. The plaintiffs have definitely alleged in their plaint that they could not close the opening after the decision of the previous suit in 1930 because the defendants offered obstruction to the opening being closed. This allegation has been accepted by the trial Court, but the lower Appellate Court has proceeded on the footing that whether any obstruction was offered by the defendants or not the plaintiffs were entitled to be compensated for the loss they had suffered on account of the wrong done by the defendants which was a continuing one. The point which is raised on behalf of the appellants is that if the plaintiffs'' case about the obstruction fails, the suit must also fail automatically and that the lower Appellate Court was not justified in setting up a case for the plaintiffs which does not find a place in their pleadings.

Now, in para. 9 of the plaint it is clearly stated (i) that the khanr remained open till 1931, (2) that the defendants took away the entire amount of water during the period in suit, and (3) that on account of this act of the defendants, the irrigation of the lands of Aganda appertaining to the plaintiffs'' takbta badly suffered. The Court below have concurrently found that the opening had been deliberately made by the defendants and that it continued to exist until after the decision of the second appeal arising out of the previous suit which was dismissed on 25th October 1933. On these facts, in my opinion, the principles laid down in Raghunath Singh v. Achutanand AIR (1918) Pat. 354 folly apply to this case and no question of contributory negligence can arise.

The effect of the wrong committed in the first instance by the defendants continued till the opening was filled up and the mere fact that the plaintiffs did not take any steps to fill up the opening while the litigation was still pending will not exonerate the defendants from responsibility for the losses sustained by the plaintiffs. It may also be pointed out here that the main point, raised by the defendants before the learned Subordinate Judge was that even admitting that the plaintiffs had attempted to fill up the khanr and were opposed by the defendants, the plaintiffs could not succeed, because they would have got the khanr closed with the help of the Court.

Thus it cannot be said that the defendants had no opportunity to meet the case upon which the learned District Judge has based his judgment. In my opinion the judgment of the District Judge is correct and I would dis. miss this appeal with costs.

Yarma J.

I agree.