Bhika Dalai and Others vs Ananda Panda and Others

Barman, J.—Defendants are the Appellants. The dispute is between two villages over riparian rights to the use of water of an irrigation channel.

The Plaintiffs are villagers of Pendurabadi village in Bodikhemidi Estate, Ganjam district. The Defendants are villagers of Damodarpur village adjacent to Pendurabadi.

The Plaintiffs'' case is this: The Plaintiffs own several plots of land in Pendurabadi village. Arjuna Nala is the recognised source of irrigation for the Plaintiffs'' village and its water is taken through an artificial channel or Khama known as Arjun Nala Khama which runs from the foot of Gaida hills through the Paromboke lands of the Defendants'' village Damodarpur to the Khajiria tank of Pendurabadi. It is said that this channel was dug by Pendurabadi villagers long ago and it is being maintained by them. In 1946 when the Plaintiffs of Pendurabadi village were repairing the channel, the Defendants of Damodarpur village are said to have created trouble and there was a criminal case. On December 6, 1947 the Defendants of Damodarpur village in a body obstructed the natural flow of the water of the channel in the manner as stated in the plaint, as a result whereof the entire water running through the channel was diverted to the fields of the Defendants of Damodarpur village. There were criminal proceedings u/s 147, Code of Criminal Procedure which ultimately ended in favour of the Plaintiffs of Pendurabadi village, and the Defendants of Damodarpur village were restrained from interfering with the channel by the order of the Magistrate which was upheld by the High Court. The Plaintiffs'' case is that the Defendants have no right to interfere with the channel, and that on account of the closing of the channel by the Defendants the supply of water was completely cut off with the result that crops failed for two successive years. After the criminal proceedings were decided against the Defendants, civil litigation followed as hereinbefore stated.

In 1950 the villagers of Damodarpur filed Title Suit No. 101 of 1950 against the villagers of Pendurabadi for declaration of title that Pendurabadi villagers are not entitled to use water of the said irrigation channel. The villagers of Pendurabadi also filed a suit being M.S. No. 589 of 1950 against the villagers of Damodarpur for Rs. 12,00/- as damages for obstruction of the flow of water of the irrigation channel as aforesaid. The Defendants'' Title Suit No. 101 of 1950 was decreed in part in that all villagers of Damodarpur, Pendurabadi and Kundhogam were entitled to the water of the channel, and that the Pendurabadi villagers had no exclusive right to the same. The Pendurabadi Plaintiffs'' said Money Suit No. 589 of 1950 was decreed in their favour against the Defendants of Damodarpur village for Rs. 12,00/- as damages for loss of crops for two successive years. The Title Appeal No. 14 of 1960 against the said decree in Title Suit No. 101 of 1950 and Money Appeal No. 5 of 1960 against the said decree in Money Suit No. 589 of 1950 were heard together and disposed of by the Additional Subordinate Judge, Berhampur. He dismissed Title Appeal No. 14 of 1960, and in Money Appeal No. 5 of 1960 he reduced the amount of the decree for damages against the Defendants from Rs. 12,00/- to Rs. 6,00/-. It is against this decision of the learned lower appellate court in Money Appeal No. 5 of 1960, that the Defendants have filed this second appeal.

The Defendants-Appellants'' point is that the Plaintiffs are not entitled to any damages. Their stand is that unless they close the channel in the manner they did, they (Damodarpur villagers) cannot get any water from the channel. It is settled law that where the owner of the land, without wilfulness or negligence, uses the land in the ordinary manner of its use though mischief thereby accrues to his neighbour, he will not be liable for damages; but where for his own convenience he diverts or interferes with the course of a stream or where he brings upon his land water which would not naturally have come upon it, even though in so doing he acts without wilfulness or negligence, he will be liable for all direct and proximate damages, unless he can show that the escape of the water was caused by an agent beyond his control, or by a storm which amounts to viz, major, or the act of God, in the sense that it is practically, if not physically, impossible to resist it.

It the present case the conduct of Damodarpur villagers in closing the channel in the manner they did was not normal utero In the criminal case, the Magistrate had found that the Damodorpur Defendants had obstructed the channel. It is by reason of such obstruction that the Pendurabadi Plaintiffs had suffered damages. The learned trial court had decreed the suit for Rs. 12,00/- as damages. The learned lower appellate court had reduced the amount to Rs. 6,00/-. In view of the facts and circumstances of the case the Defendants of Damodorpur village had clearly interfered with the flow of water of the channel and thus caused damages to the Plaintiffs. In my opinion the learned lower appellate court was right in his decision.

On a point of abatement, Mr. H.G. Panda learned Counsel for the Respondents submits that he does not press it, because there are no legal representatives of deceased Respondents 11 and 18, and therefore no question of their substitution arises.

For the reasons aforesaid, on merits, the decision of the learned lower appellate court is upheld. This appeal is dismissed with costs.