WEST GODAVARI DISTRICT BOARD Vs. NANDIGAM RAMA RAO

JUDGEMENT

(1.) These two appeals arise out of two suits filed by the respondents herein, for compensation for injury and damage done to their land by reason of pits having been dug in their land while constructing a road. Two suits were filed by two different individuals being O.S. Nos. 483 of 1953 and 484 of 1953 on the file of the District Munsif's Court, Bhimavaram. The defendants to these suits were the District Board, West Godavari, (now substituted by the Panchayat Samithi, Akividu) and the contractor, who was employed for the purpose of putting up a road. The allegation in the plaint was that the contractor, acting under the instructions of the District Board, while trying to lay the road, dug earth from portions of the plaintiff's land, that by reason of the digging of the earth they had sustained damage on account of their not being able to cultivate the land. It was also stated that in order to fill up the pits and restore the land to its normal condition the plaintiffs would have to spend money. The claim, therefore, was for the cost of re-filling the pits and for compensation for loss of crops for the years 1952-53 at the rate of 7 bags per crop for two years valuing each bag at Rs. 18-12-6. The plaintiffs also prayed for a mandatory injunction directing the defendants to fill up the pits marked in the plaint and to restore the lands to their normal condition arid for a permanent injunction restraining the defendants from ever interfering with or altering the condition of the plaintiffs' land. It is not necessary to set out in detail the individual allegations of the plaintiffs in each of the two suits for the point involved in both the suits is the same. By consent, evidence was led in both the suits and a common judgment delivered by the trial Court. The defendants resisted the suits inter alia on the ground that the suits were barred by limitation not having been brought within six months from the date of the injury or damage as required by section 225 (2) of the District Boards Act. The trial Court overruled the objection as to limitation and passed a decree in O.S. No. 483 of 1953 in favour of the plaintiff for Rs. 736-9-6 representing the cost of filling up the pits and with regard to the alleged damage sustained, awarded a decree for Rs. 150-4-0 as compensation. In O.S. No. 484 of 1953 it awarded Rs. 250 as the cost of filling the pits and a sum of Rs. 93-14-0 as compensation. The lower appellate Court, while concurring with the trial Court on the question of limitation, varied the decree of the trial Court by issuing a mandatory injunction to the defendants to fill up the pits failing which the plaintiffs were empowered to take action under Order 21, rule 32, Civil Procedure Code. As regards the loss of crop, it awarded a sum of Rs. 150-4-0 as compensation for the loss of crops in O.S. No. 483 of 1953 and a sum of Rs. 93-14-6 in O.S. No. 484 of 1953. The present appeals are by the District Board (now Panchayat Samithi, Akividu).

(2.) There is no dispute that there was an injury or damage to the plaintiff. That the plaintiff would be entitled to compensation for damage is also not a matter in dispute. The only contention raised on behalf of the Samithi is that the plaintiff's suits are barred by limitation. Reliance is placed upon section 225 (2) of the Madras District Boards Act, (Act XIV of 1920). This section relates to actions taken against the District Board and provides for a period of time within which such action should be taken. Sub-section (2) of section 225 is as follows :-

(3.) The sub-section envisages the taking of steps or any proceedings against the District Board within six months of the date of the accrual of the cause of action, that is to say, where there-has been an injury which gives rise to a cause of action for damages, the action should be brought within six months of such injury. Both the Courts below have come to the conclusion that it is a case of continuing damage caused by the injury inflicted by the respondent. The Courts held that although the injury was caused when the pits were dug, still the damage to the plaintiff is a continuing damage in that the plantiff has been deprived of cultivating the land and reaping the fruits thereof. The decision in Subramaniam v. President, District Board, Narsapur, A.I.R. 1941 Mad. 733. was held to be not applicable to the facts of this case, because, according to the lower Court, the injury in the present case is a continuing one and the damage to the lands, of the plaintiffs was a recurring one. In the case of a continuing injury or damage, the sub-section provides for proceedings being commenced during the continuance of such injury or damage or within six months after the ceasing of such injury. There has been no cessation of such injury or damage according to the plaintiffs and as it is a cause of action arising de die in diem no question of limitation would arise. It has to be mentioned that the plea of limitation was not pressed before the trial Court at the time of the arguments but when the matter was before the lower appellate Court, the Advocates appear to have argued the question of limitation also. The point that is now urged here is that the point of limitation having been given up in the trial Court, it is not open to the Government to press the point here in the appellate Court. The learned counsel for the respondent sought to rely upon a Bench decision of the Madras High Court in Seshachala Naicker v. Varadachariar, 11 M.L.J. 318 : (1901) I.L.R. 25 Mad. 55.