GADEPALLI SEETHARAMASWAMI Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF GODAVARI DISTRICT

JUDGEMENT

(1.) This second appeal arises out of a suit by the plaintiff for injunction and for damages. The plaintiff is the owner of jiroyti land No. 784 in Peddapuram. This land was situated south of a tank called Venkatapathiraju tank. The plaintiffs complained that the defendants extended the tank towards, the east, shifted the bye-wash of the tank form northwest to the north-east and in the year 1916 bunded the bye-wash so as to enlarge the water-spread of the tank and cause submersion to plaintiff's land, namely, 8. No. 784. Plaintiff claimed Rs. 1,000 as damages.

(2.) The first defendant is the Secretary of State for India and defendants Nos. 2 to 6 are the ryotwari tenants under Government, whose lands are irrigated by the tank and whose lands would be benefited by an increase of the water-spread of the tank. The District Munsif found that the tank proper should be confined to S.No. 775 and did not extend to S.No. 760 as contended by the defendants Nos. 2 to 6, that it was not possible to say when the bye-wash was changed from the west to east, but that the western outlet was closed as the result of the opening up of a road and that the eastern outlet was bunded up by the defendants causing damage to the plaintiff. He also found that defendants Nos. 2 to 6 were responsible for the opening up of the eastern outlet and that the first defendant was also responsible inasmuch as he attempted to support the action of defendants Nos. 2 to 6 through his officers, that the plaintiff sustained damage to the extent of one thousand rupees and accordingly gave a decree.

(3.) On appeal, the Subordinate Judge finds in para. 9: "All that Ave see from the records maintained by the Government is that Survey No. 775 is the tank bed.... The Government says that its tank is only in Survey No. 775. The bed of the tank and the bund must necessarily be confined to that number; but, as a matter of fact, we see that the tank extends some hundreds of feet beyond its eastern limits and all this length is covered by fields of private owners, the bund also being owned by them. The Government has not made any attempt to extend the tank bund openly and as of right, but permitted the bed to drift for itself according to the whims and the caprices of the adjacent owners". Finally he says in para. 10 that the tank has been in the present extended condition for over thirty years at least. But from his earlier remarks, it is also clear that this expansion was neither proper nor authorised by Government. He finds in para. 11 that the plaintiff cannot complain of the shifting of the bye wash. In para. 12 he then states: "The only question that remains for consideration is whether the defendants have bunded up the bye-wash and the damage complained of was caused directly by such bunding up". In the course of the paragraph, he first refers to the plaintiff's arzi dated the 30 October 1916 (Ex. T). Then, after referring to a stream of arsis showing the anxiety of the plaintiff, he refers to the kavnam s, report Ex. T(I) dated the 30 October 1916 which shows that a bund was really put up but was removed. Exhibit T(I) says: "On inspection I found at that place, stakes, a yard high, were set with small palmyrah and date trees, etc, laid across, for preventing the escape of water".... "On account of the said bund, the lands bordering on the interior of the tank are being submerged and crops damaged". The Subordinate Judge then refers to Ex U (2; dated the 9 November 1916, a report to the Minor Irrigation Overseer which also confirms the fact of the existence of the bund across the bye-wash. The Subordinate Judge then states that the Minor Irrigation Overseer found that the band which was still in existence at the time of the inspection was 6 inchas higher than the full tank level of the tank. His inspection was on the 6 of November. The Subordinate Judge then states: "Thus the higher level of the bund by 6 inches. continued from 30 October to the 6 of November". Lower down he refers to a large number of arzis upto July 1917. Then he states: "But it does not appear that the bund was raised beyond the 4 inches mentioned in Ex. A-3 until July 1917." He then refers to the report of the Overseer on the plaintiff's petition of the 29 July. This report stated that the existing natural bye-wash was bunded up to a height of one foot. The Subordinate Judge then states: "what this F.T.L. was it is difficult to see. Presumably it had the effect of not allowing more than I foot of water over 784-A". He then concluded "From the mass of evidence all that I have been able to gather is that the bye-wash was originally bunded up in October 1916 to the extent of one yard by the owners of the adjacent fields but the bund was immediately removed by the village officers that the remnant of the bund removed was still 6 inches high when the Minor Irrigation Overseer went and saw it in the beginning of November 1916, that subsequently there was a report again in the e November, 1916 and when the Overseer again inspected it he found 4 inches of the bund above the F.T.L., that he got the excess removed but under the orders of the Deputy Collector he had to put it up again, that in July 1917 there was again a bund put up which was reported by the plaintiff and on which under the orders of the Tahsildar act of Was taken by the Overseer and the bund, was removed so as to have only one foot of water on the beneficial submsersion land of 784-A." He then says: "We have to see what damages the plaintiff sustained mainly by reason of the bund put up and removed from time to lime". It is clear from his findings just quoted and also from the statement in para, 16 of the judgment where he says: "The plaintiff cannot be compelled to be in perpetual fear of submersion and damage, and a duly is cast upon the first defendant to keep his tank in such a position as not to cause any damage to the plaintiff the adjacent owner. A mandatory injunction will, therefore, be necessary to have the F.T.L. fixed and the outlet constructed by raising a masonry weir which would discharge the water accumulating beyond the permitted water spread." The Subordinate Judge is of the opinion that there is a wrongful act on the part of the defendants which furnished a cause of action to the plaintiffs suit and which has caused him damage. The Subordinate Judge discusses the question of damages in paras. 13 to 15. At the end of para. 13 he says: "It is not possible to say what damage was caused by which of these agencies. In the absence of positive data, I cannot fix the entire liability upon the defendants". The agencies he refers to in the sentence just quoted are other natural agencies, such as heavy rain, overflowing of a feeder channel, etc. In para. 14 he says: "But because of the abnormal rains which had direct access to the plaintiff's fields and the plaintiff not having been able to show that the damage was mainly due to the overflow of the tank water and as there has been no wrongful act committed by the Government their attempts having always been to avert damages, I must exonerate the first defendant from liability". In para. 15 he says: "With regard to the second portion, defendants Nos. 2 to 6 are certainly wrong in hayiug persisted in bunding up the tank first to a height of one yard then to a height of 6 inches and afterwards to a height of one foot. The damage caused by the rise of one yard would have been considerable, but it was immediately averted on the very day. The water of 6 inches depth was allowed to continue for more than a week and water of 4 inches was allowed to continue for some months. The immediate cause of the whole damage does not appear to be this slight rise in level, but the plaintiff is entitled to claim damages to some extent," From all the above sentences quoted by me, the Subordinate Judge seems to be of the opinion that the plaintiff has certainly sustained damages in the year 1916 but that the damage could not have been wholly caused by the wrongful act of the defendants in opening up the bye- wash but that other natural causes must have combined with the wrongful act of the defendants in producing the damage.