KESHABA MARAI Vs. KUNJA BEHARI PATEL

JUDGEMENT

(1.) Defendant No. 5 in Money Suit No. 110/22 of 1975/77 has challenged the judgment dated 22-9-1979 and decree dated 26-10-1979 passed by the Subordinate Judge, Patnagarh dismissing the suit on contest against defendant No. 1 (State of Orissa), ex parte against defendant No. 1 (State of Orissa), ex parte against defendant Nos. 2 and 4 without cost and decreeing the suit exparte against defendant Nos. 3 and 5 in part with proportionate cost directing them to jointly pay a sum of Rs. 1, 500.00 as damages to the plaintiffs who had claimed damages to a tune of Rs. 10,000.00 against the defendants for the loss sustained by them due to failure of their crop by the acts of the defendants depriving them of their right to irrigate their lands.

(2.) The plaintiffs are residents of village Rugudimunda in the sub-division of Patnagarh, district-Balangir. Their ancestors were the 'Thikadars' of the village. Plot No. 212 of their village is a water reservoir and is recorded as such in the R. O. R. of 1936 Settlement. The lands described in Schedules A/1 and A/II of the plaint belonged to the plaintiffs, recorded as irrigable lands. They claimed that their ancestors had excavated the aforesaid reservoir for the purpose of irrigating their lands and for eighty years prior to institution of the suit they exercised their right of taking water of the reservoir for irrigating their lands. Late Chakdradhar Patel, father of plaintiff Nos. 1 and 2 instituted a civil suit bearing No. 3 of 1941 in the Court of the Subordinate Judge, Balangir against the State of Patna and villagers of Sunamundi for declaration that the villagers of Sunamundi had no right to take water from the said reservoir and that the plaintiffs had exclusive right, title and interest over the said reservoir. The suit was dismissed and Civil Appeal No. 39 of 1942 was preferred in the Patna State High Court. The appellate Court held that the plaintiffs in the suit had better right to take water from the said reservoir to irrigate their lands than the residents of village Sunamundi and further observed that after satisfying the needs of the plaintiffs,water would be given to the residents of village Sunamundi. It was also held by the appellate Court that the said reservoir (locally known as 'KATA') was the property of the State and, therefore, State had every right to dispose of its water in any way it liked through village Panchayat. It is alleged that on 16-9-1974, defendant No.4, the Revenue Inspector of Patnagarh opened an outlet (GHAI) in the reservoir to provide water to the lands desribed in Schedule A/III of the plaint belonging to defendant No.5, a resident of village Sunamundi as per the order of defendant No. 3, the Additional Tahsildar, Patnagarh. It is further alleged that water was supplied to the lands of other tenants of village Sunamundi on 17-10-1974. Pursuant to the said order of defendant No. 3, after appointing a Panchayat consisting of eight members each from village Sunamundi and village Rugudimunda, on 20-10-1974 defendant No. 3 with the assistance of defendant No. 4 and police force went to the said reservoir stating that defendant No. 5 had obtained order from defendant No. 2, the then Collector of Balangir, for supply of water to his lands out of the said reservoir by cutting the earthen embankment and in spite of protest by the plaintiffs, the embankment was cut by the field servants of defendant No.5 and villagers of Sunamundi allowing water from the reservoir to the lands of defendant No. 5. Due to rush of water from the said reservoir through the lands of the plaintiffs, the standing crops of the plaintiff on Schedule-A/II lands were damaged and ridges were also damaged, causing loss to a tune of Rs. 5,000.00. Since the water of the reservoir was drained out, the lands of the plaintiffs mentioned in Schedule-A/I could not be irrigated and they had to sustain a loss of Rs.12,500.00. As against a loss of Rs. 17,500.00 the plaintiffs claimed damage of Rs.10,000.00 from the defendants.

(3.) Defendant No. 1 contested the suit by filing written statement disputing all the allegations of the plaintiffs. According to defendant No. 1, the suit reservoir belonged to it exclusively and the action taken by defendant Nos. 3 and 4 to provide water to the villagers of Sunamundi who had also right to irrigate their lands from the said reservoir was not illegal or unauthorised and, therefore, the plaintiffs were not entitled to any damages as claimed by them. Defendant Nos. 3 and 4 filed a separate written statement adopting the written statement of defendant No. 1.