LEKSHMIKUTTY AMMA Vs. RAMAN

JUDGEMENT

(1.) Defendants 1 and 2 in O.S. No. 585 of 1118 of the Haripad Munsiff's Court, who are husband and wife are the appellants in this second appeal. Plaintiffs 1 and 2 are also husband and wife, plaintiff 1 being the husband. They brought the suit for declaration of their title to a tank and for an injunction to restrain the defendants from entering into their property and filling up the tank.

(2.) Sy. No. 577-B of Karthigapalli Pakuthi belongs to Plaintiff 1 and Sy. No. 579 lying to its east belongs to Defendant 1 who is Defendant 2's wife. The plaintiffs' case is that the tank in question forms part of Sy. No. 577-B and that the defendants were wrongly attempting to fill it up. The court below found that the major portion of the tank lies between the defendants' property, S. No. 579, and that only a small portion of it lies in the plaintiffs' property S. No. 577-B. A decree was, therefore, given to the plaintiffs only in respect of the portion of the tank lying within S. No. 577-B and restraining the defendants from filling up that portion of the tank. Even before the institution of the suit, the defendants had brought some mud and kept it on the bank of the tank in their property. Apprehending that this mud was brought for filling up the tank, the plaintiffs had applied for an obtained a temporary injunction restraining the defendants from entering into the tank and filling it up. During the pendency of the suit a part of this mud was washed down into the tank by rain, and water in the tank, which was used for drinking purposes, got polluted. Plaintiffs claimed Rs. 100 on account of the cost of removing this mud and restoring the tank to its normal condition; and a Commissioner deputed by the Trial Court found that the cost of repairing the whole tank would come to Rs. 50. The Trial Court found that the costs of restoration in respect of the plaintiffs' portion of the tank would not exceed Rs. 20. But it refused to award even this amount to the plaintiffs on the ground that the mud was washed down into the tank by rain and that if the plaintiffs had not applied for and obtained the temporary injunction the defendants would have removed the mud before the rains and no damage would have been occasioned. The Trial Court also ordered the parties to suffer their costs. The lower appellate court awarded Rs. 20 to the plaintiffs as compensation for the costs of repairing the tank and also modified the order of the Trial Court regarding costs allowing the plaintiffs to recover one half of their costs in both courts from the defendants. In this second appeal the defendants object to the award of compensation and to the order of the lower appellate court regarding costs.

(3.) From the commission report it is seen that the defendants had kept the mud close to the tank. They were fully aware of the fact that the rains would wash down a part of the mud into the tank and render the water unfit for drinking purposes. It is also clear from the evidence in the case that the plaintiffs were using the water in this tank for drinking purposes. The order of temporary injunction was only to the effect that the defendants should not enter into the tank and fill it up. It did not in any manner restrain them from removing the mud which they had brought and kept on the bank of the tank in their property. Under these circumstances on the principle adopted in the decision in Rylands v. Fletcher (1868) L.R. 3 H.L. 330), the defendants are clearly liable to compensate the plaintiffs for the damage caused to them by the washing down of the mud into the tank and the consequent filling up of their portion of the tank and the pollution of the water therein. The lower appellate court was, therefore, right in awarding compensation to the plaintiffs in that respect.