NARESH MOHAN THAKUR Vs. BRIJ MOHAN MISRA

JUDGEMENT

(1.) This appeal raises only one question, which is a very narrow one, though of considerable importance. The sole matter for determination here is whether the High Court at Patna were right in dismissing the appellants' claim to recover damages from the respondents. The claim was dismissed in toto, and the respondents have contended before their Lordships that the order of the High Court dismissing in toto the claim for damages was correct. The rest of the order of the High Court is not in any way brought in issue before their Lordships. In all other respects, except as to costs, the High Court affirmed the decree of the Subordinate Judge of Bhagalpur. The appellants and the respondents are riparian owners on the river Belasi. The appellants, who were plaintiffs in the action, are the lower riparian owners on that stream, and the respondents are the upper riparian owners.

(2.) The claim in the action was that the respondents had erected a dam on their part of the stream, which had the effect of interfering with the flow of the stream down to and through the portion belonging to the appellants and in that way have interfered with their rights as riparian owners and caused them loss or damage. The claim in the action, which is contained in the plaint, raises the issue of fact and claims a declaration that the plaintiffs were entitled to the free and uninterrupted supply of water and an injunction to restrain the defendants from putting up a dam across the river Belasi, or obstructing the free flow of water in any other manner, and, furthermore, to pass a decree for Rs. 10,350 as damages for the injury suffered by the plaintiffs, and also to pass a decree "for further damage till the removal of the dam and that the amount of actual damage may be ascertained in a subsequent stage of the suit and a decree may be passed for the same on taking requisite court-fee."

(3.) That was the prayer in the action, and issues were framed by the Subordinate Judge, of which issues 13 and 14 are material. Issue 13 is: "Did the crops of the plaintiffs suffer on account of the construction of the disputed dam."Issue 14 is: "Are the plaintiffs entitled to get any damage from the defendants ? If so, how much ?" The case obviously involved a very long and intricate examination of the facts and involved a very prolonged calling of witnesses. It appears that at the trial 21 witnesses were called, for the plaintiffs, the appellants, and 26 witnesses for the defendants, the respondents. At the end of the evidence of the first witness called by the plaintiffs they filed a petition, which is set out in the record, in these terms : "Petition filed by plaintiffs praying that the evidence regarding loss and damages be allowed to be reserved for the present and till after the decree is passed in this suit."