RAM SAHAI Vs. MATA DIN

JUDGEMENT

(1.) THIS is plaintiffs second appeal arising out of a suit for a mandatory injunction to direct the defendants to fill up a pit dug by the defendants on their land shown by Letters ABCD in the plaint map and for recovery of Rs. 200/- as damages caused to the plaintiffs' house by reason of this pit. According to the plaintiffs the pit had been dug near the northern wall of these house. During the rainy season the pit got filled up with rain water and it percolated towards the plaintiffs' house damaging this wall. The defendants denied that any dama ge was caused to the plaintiffs by any act of the defendants. The trial court believed the plaintiffs' evidence and held that the pit had been dug by the defendants and that rain Water had percolated towards the plaintiffs house and damaged their wall and that the plaintiffs had suffered damages to the extent of Rs. 200/-. On these findings the trial court decreed the suit both for injunction and damages. The defendants' went up in appeal. The appeal was allowed by the lower appel late court.

(2.) FOUR points were raised in the court below. The first was that the plaintiffs had no right to maintain the suit even if the allegations were correct. This was negativ ed by the court below. The second point was that the defendants had not dug the pit. This too was not accepted as correct. The third point was that no damage had been caused to the wall of the plaintiffs' house on account of the digging of the pit. This point was decided in favour of the defendants. The fourth point was that the plaintiffs had not proved the quantum of damages. The appel late court did not give any finding on this point, but held that the defendants did not cross-examine the plaintiffs' witnesses on this point. On these findings the appellate court allowed the appeal and dismissed the plain tiffs' suit

(3.) ALTHOUGH the lower appellate court has not recorded any finding about the quan tum of damages, it has found that the defen dants did not cross-examine the plaintiffs' wit nesses on this point Hence, the finding re corded by the trial court on the basis of the plaintiffs' evidence, regarding the quantum of damages must be accepted as correct. Ac cording to the lower appellate court, the de fendants have already covered the pit, hence the relief for injunction has become infruc-tuous.