PATTAM SATYABADI PATRA Vs. KASINATH BISSOYI

JUDGEMENT

(1.) DEFENDANT No. 1 is the appellant Defendant No. 2 is the State of Orissa against whom no relief is claimed by the plaintiff. The plaintiff belongs, to village burudapalli. Defendant No. 1 belongs to an adjoining village Brahmanpur. The plaintiff filed the suit for grant of a permanent injunction against defendant No. 1 restraining him from diverting water in defendant No. 1's "bhanja Billa" lying, west of "bana Nala" in survey No. 84 to the east of the said Nala by fixing any pipe or any other contrivance across the canal in survey No. 84 and restraining him from allowing these waters from passing to the fields of the plaintiff and other members of his family.

(2.) THE dispute between the parties arose thus: "dayapalli Nala" is an irrigation channel. Defendant No. 1 had land about 100 bharanams in extent? called "bhanja billa" to the east of the said Dayapalli Nala (Irrigation channel ). , To the east of defendant's "bhanja Billa" (paddy land) there is a drainage channel called "bana nala". Both these channels discharge waters in a river called Sana Nadi on the north. To the east of the drainage channel "bana Nala" defendant No. 1 had got another land called "behera Billa" which is just opposite to "bhanja Billa" with only the drainage channel "bana Nala" intervening. The plaintiffs-land is to the northeastern side of defendant No. 1's land "behera Billa". It is said that defendant No. 1's paddy land "bhanja Billa" is at a higher level than both defendant No. 1's "behera Billa" and the plaintiff's land lying on the north-eastern side of the drainage channel "bana Nala". The plaintiff's case is this; In 1951 defendant No. 1 par-chased "behera Billa" in order to drain the rate water and the wafer from the irrigation channel "dayapalli Nala" brought by means of a sluice which accumulated in defendant No. 1's "bhanja Billa", by putting a wooden "pipe beneath the drainage channel "bana Nala" which is also said to be at a higher level. The plaintiff complains that by this contrivance defendant No. 1 discharged excess water into "behera Billa" which ultimately inundated the plaintiff's adjacent lands to the northeast and caused damage to the plaintiff's crops. In 1953 the plaintiff reported to the revenue authorities who after local enquiry decided that defendant No. 1 had no right to put the wooden pipe. In 1954 there was a heavy flood as a result of which the wooden pipe gave way and was washed off. In the meantime there was a criminal case filed by defendant No. 1 against the plaintiff and others. In 1956 defendant No. 1 wanted to fix a new wooden pipe because the wooden pipe which he had fixed in 1951 had been washed away by the flood in 1954. The present suit was filed by the plaintiff on September 24, 1956, for permanent injunction to restrain, defendant No. 1 in terms of the prayer made in the plaint as aforesaid.

(3.) DEFENDANT No. 1's defence to the suit is that the pipe existed from time immemorial; that he had customary right to let this water out by a pipe; that he purchased "behera Billa" with pipe in 1951 : that during rainy season excess water stagnates in his paddy land 'bhanja Billa' and other neighbouring lands and defendant No. 1 has to pass water through the pipe to "behera Billa"; that no damage has been suffered by the plaintiff; that the Government has no right to regulate the disposal and draining of excess water to the detriment of defendant no. 1 who has a natural right of letting his water through the low lying lands to the river; that any order passed by the Government will not bind defendant No. 1; that defendant No. 1 had brought a criminal case against the plaintiff and others for having forcibly removed the pipe and caused damage to defendant No. 1's lands and they were convicted and the conviction was upheld in Criminal Revision; that defendant No. 1 had right as easement of necessity.