ETHAKOTA PEDDU RAJU Vs. GANNAMAREDDI LAKSHMAYYA

JUDGEMENT

(1.) The defendants in small Cause suit No. 157 of 1957 are the petitioners before this Court. The respondent filed a suit for the recovery of a sum of Rs. 100.61 nps., being the amount claimed by him towards damages caused by the petitioners to the plaintiffs crops by allowing water to flow into his land. The plaint averments are briefly as follows. ( The plaintiff-respondent purchased in February, 1957 the horsegram cropin Acs. 1-25 cents in theland of one valluru Jagannadha Rao near the western channel of Rayakuduru. The petitioners (defendants) are tenants of the adjacent lands of the daughters of one Pemmaraju Gurraju. They raised pillipesara crop, and for watering the said crop they made a gandi in the channel in about March, 1957 and as the water came in large quantities, they let it out by breaching the bund into the crop purchased by the respondent. The result was that the crop became rotten. Even if the petitioners did not make the gandi to the channel as the crop of the respondent became submerged due to the wrongful acts due to the petitioners in letting off the respondent became submerged due to the wrongful acts of the petitioners in letting off the water into the respondents crop, they are liable for theloss. The petitioner filed a written statement denying the allegations.

(2.) The court below on an appreciation of the evidence adduced in the case found that the1st defendant made a breach in the bund of the channel and watered his pillipesara crop and allowed the excess water to submerge the respondents crop. To a notice issued by the respondent to the petitioners complaining that they made a gandi in the channel and let out the excess water into his crop thereby damaging it, the petitioners sent a reply admitting that somebody made the breach of the channel higher up and that they were not responsible for the breach and that they did not allow the water to damage the plaintiffs crop. The court below on an appreaciation of the evidence came to the conclusion taht the defendants were responsible the plaintiff and passed a decree. No objection was taken by the petitioners to the jurisdiction of the court to try the suit on the Small Cause side. The defendants have preferred this revision petition before this court and have taken the objection that the suit is not recognizable by the Small Cause Court inasmuch as it falls within clauses (i) and (ii) of Art. 35 to Scheduleii of the Provincial objects to the point being raised for the first time in this court in a revision under S. 25 of the Act.

(3.) Relianceis placed on the judgement of Beasley, C. J. of the Madras High Court in a case reported in Kelu Kurup v. Subramania Ayyar, AIR 1937 Mad 644. It is there in rules by the learned Cheif justice that the High Court is not bound to allow the point to be taken for the first time in revision. The learned judge observed that as the point was being constantly taken for the first time in the High Court in similar revision petitions, he examined the case put before him and the majority opinion in the Madras High Court was that the High Court was not bound to allow the point to be raised under similar circumstances. According to the learned judge the point is capable of only one answer. The learned judge observe as follows: