ABDUL QAYUME Vs. FARIUDOON MIRZA

JUDGEMENT

(1.) This is an application preferred under Section 25, Provincial Small Cause Courts Act, for revision of a decree pissed by the Judge, Small Cause Court, Lucknow, in a suit for damages on account of injury caused to the plaintiff's wall by the defendants allowing rain water to accumulate on their land by building a pushta (embankment).

(2.) The material facts lie within a short compass; The plaintiff's house adjoins some plots of land owned by the defendants. In order to prevent the rain water flowing from the southern plots on to the northern plots owned by the defendant?, they constructed an embankment or pushta, which obstructed the channel through which rain water naturally used to flow out. This, it was complained, resulted in the accumulation of rain water on the defendants' land which damaged the wall of the plaintiff's house. He accordingly instituted the suit, which has given rise to the present application, in the Court of the Judge, Small Causes, Luck-now, for recovery of Rs. 500 as damages. the learned Judge held that water had accumulated on the defendants' laud because they built a pushta and obstructed the natural flow of rain water which used to escape through the channel towards north. The accumulation of the water damaged the plaintiff's wall. The claim was decreed for Rs. 200 and proportionate costs. The present application has been made challenging the decree.

(3.) Two points were raised by the learned counsel for the petitioners: (1) That the suit was not cognizable by a Court of Small Causes as it fell within the purview of Article 35 (i), Schedule II, Provincial Small Cause Courts Act, and (2) that the plaintiff was guilty of contributory negligence and hence the defendants were not liable to any damages.