RAJESWARAN Vs. DISTRICT COLLECTOR OF PERIYAR DISTRICT

JUDGEMENT

(1.) THIS appeal is focussed against the judgment and decree dated 22. 7. 1988 passed in O. S. No. 156 of 1984 by the Subordinate Judge, Dharapuram.

(2.) TERSELY and briefly, the case of the plaintiffs, as stood exposited from the plaint could be portrayed thus: (a) The plaintiffs are owning the land measuring an extent of 11. 66 acres in Survey Nos. 61/3 and 62/2 in Periyakumarapalayam Village, Dharapuram Taluk as described in the schedule of the plaint and they were raising cash crops thereon, as it happened to be a fertile field. (b) The suit property and other lands in the vicinity were included in the Ayyacut to be fed by the Parambikulam Aliyar Channel, planned and laid out in that area. The defendants were responsible for implementing the said Parambikulam Aliyar Channel and to see that the water flows through the channel without any seepage or causing any damage to the ryotwari lands or other lands. (c) The lands in that locality are slopping from West to East. Before the advent of Parambikulam-Aliyar Project, the rain water from S. Nos. 55, 57 and 58 passed into Survey No. 80 on the East and drained into the Odai, which is in existence and passing through Survey Nos. 79 and 78 and ultimately draining into the Upper Odai. (d) The defendants laid channel under the aforesaid project across the land in Survey Numbers 55, 57 and 58 from North to South direction and raised the bunds on either side. Whereupon the flow of water into Survey No. 80 was blocked and thereby prevented the rain water to reach the odai in Survey Number 70. The second defendant constructed a culvert on the South Western corner of the plaintiffs' land in Survey No. 61/3, as an outlet for the said obstructed water, which finds its way into the plaintiffs' lands and thereby the plaintiffs' land has been made to get inundated, rendering the land unfit for cultivation. The seepage of water from the upper lands also inundates the plaintiffs' land and makes it unfit for cultivation. (e) Despite incessant demands made by the plaintiffs ever since 1977 for remedying the defect, the defendants turned turtle and refused to look into it. The flow of water from the West was very heavy and that the Western bunds of the North South channel got damaged and the defendants raised the level of the bunds further, which further aggravated the plaintiffs' land getting inundated further, during rainy season. The defendants did not plan the project properly and laid the channel. The plaintiffs in their anxiety to get their property saved from being rendered useless for cultivation, offered to bear the land acquisition cost to lay an outlet channel, so as to prevent their lands getting inundated. (f) The defendants issued a memo dated 30. 5. 1983 calling upon the plaintiffs to deposit a sum of Rs. 1979. 50 to acquire a strip of land in Survey No. 63 on the East of the second plaintiff's land so as to lay a channel to drain the stagnating water. However, the defendants have not taken any strips positively so as to remedy the defect. Hence, the suit for obtaining mandatory injunction as against the defendants.

(3.) PER contra, impugning and challenging, gain saying and contradicting the averments and allegations in the plaint, D2 filed the written statement, which was adopted by D1, the pith and marrow of them would run thus: the Parambikulam Aliar Channel project was implemented carefully and properly. Water is released for a period of 4? months during alternative weeks, so as to enable the farmers to cultivate dry crops. The lands in the vicinity are sloping from West towards East and from time immemorial, the rain water flows in from West to East. The plaintiffs' predecessors have put up a cross bund to an height of 10 feet South to North on the Eastern side of S. No. 62 and on the middle of Survey No. 80 and thereby prevented the natural course of rain water and got it stagnated for getting benefit of their Well irrigation and underground storage of water, since the suit area was also a drought affected one and the rain was scarce; suppressing the above said facts, the plaintiffs have chosen to file the above said suit. There is no seepage of water from PAP Channel. Even though the second plaintiff's father agreed to bear the expenditure for providing outlet to the water flowing into the plaintiffs land, nonetheless, subsequently he turned turtle and there is no legal obligation on the part of the Government to lay any outlet for the benefit of the plaintiffs. Accordingly, the defendants prayed for the dismissal of the suit.