SYED QUAMZAL HUDA Vs. KUMUD NATH SEN GUPTA

JUDGEMENT

(1.) The plaintiff-appellant brought the suit against the defendants (63 in number) to recover damages caused by the wrongful omission on their part to cut a bund in the river Mohana on the 7 Kartik 1309 and the 7 Kartik 1310 in accordance with the terms of a compromise decree passed between the parties in a suit on the 6 August 1884. The plaintiff is the proprietor of mouzah Raghunathpur and the defendants are the proprietors of mouzah Sartha. There appears to have been a dispute between the proprietors of these two villages with regard to the use of the water flowing down this Mohana River and the right to discharge the surplus water from their villages down this river. The result was a suit in 1884, which was disposed of by the compromise decree of the 6 August 1884 above alluded to. That decree was in favour of the plaintiff who was the pre-decessor-in-interest of the present plaintiff and it provided that the defendants, who were the predecessors-in-interest of the present defendants, should cut the bund in dispute every year on the 7 day of Kartik of the Fasli year and that, if they failed to do so, the plaintiff should cause the bund in dispute to be cut in execution of the decree. It appears that, in order to irrigate their lands, the defendants every year constructed a bund in the river Mohana and the removal of that bund in Kartik was necessary in order that the surplus water from the land of the plaintiff's village might be discharged down the river. It seems that, from 1884 down to 1900, the terms of this compromise decree were complied with but on the 15 October 1900, corresponding to 7th Kartik 1308, the defendants failed to cut the bund in the Mohana River. The plaintiff's men went to try to cut it themselves but were resisted and, on the 10 October 1901, they brought a suit to recover damages from the defendants and to have the bund in the river cut. The suit was not disposed of till the 7 March 1903 when a decree was passed in favour of the plaintiff. In that decree damages were given for the year 1308 only and, as the defendants had failed, in compliance with the compromise decree, to cut the bund on the 7 Kartik 1309 or on the 7 Kartik 1310, the present suit was brought in order to recover damages for the loss of the crops of those years.

(2.) In the Court of first instance a decree was granted in favour of the plaintiff for the full damages claimed. There was an appeal to the lower appellate Court by one only of the 63 defendants and the result of that appeal was that the whole suit of the plaintiff was dismissed and costs were given against him in favour of all the defendants. The plaintiff has brought the present appeal.

(3.) The ground, on which the learned District Judge held that the suit of the plaintiff must fail, was that no cause of action for the years 1309 or 1310 arose, in favour of the plaintiff until he had essayed to cut the bund and was prevented. Evidence was adduced on behalf of the plaintiff to prove that he had through his servants attempted to cut the bund in those years but that evidence was disbelieved and the learned Judge was of opinion that, in those circumstances, the plaintiff had no cause of action against the defendants. He further held that, so far as the special appellant before him was concerned, the plaintiff had no cause of action against him as, from the evidence of the plaintiff's own witnesses, it would appear that neither that defendant nor any of his servants was present to prevent the servant of the plaintiff in 1309 and 1310from cutting the bund.