SHANMUGAVEL GOUNDAN Vs. VENKITASWAMI ASARI

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the plaintiff for a permanent injunction restraining the defendants from flooding his land. The plaintiff's case is that the defendants own a tank Survey No. 823 and the plaintiff owns lands south of it, that its storage capacity was only 30 kulies and its ayacut 18 kulies and that they extended the northern and eastern bunds of the tank and put up a new bund, increased the height of bunds and shifted the surplus weir and in consequence whereof his land was flooded and he suffered damage. The defendants disputed the title of the plaintiff to the land claimed by him and denied having made any alterations as alleged but they also asserted that the ayacut of the tank was not 18 kulies but 53 kulies.

(2.) The learned District Munsif of Dindigul found for the plaintiff in regard to the title of the land claimed but held that no alterations were made and dismissed the suit. He refused to rely on the report of the Commissioner who was appointed to inspect the locality immediately after filing the suit. The learned Subordinate Judge allowed the appeal of the plaintiff and gave a decree as claimed by him. He accepted the Commissioner's report and found that the defendant did make the alterations complained offend specified in the report of the Commissioner. He also found that there were no grounds to hold that the plaintiff's land was inundated by the action of the defendants though there were not sufficient materials to assess the damage and came to the conclusion whether or not there was an invasion of the plaintiff's right regarding the enjoyment of the land, there was sufficient evidence on record to show that the defendants were threatening to invade his right. The defendants have preferred the second appeal.

(3.) Mr. Rajah Ayyar on behalf of the appellants argued two points before me. The first is that the findings of the learned Subordinate Judge do not warrant the issue of an injunction and he has not correctly applied the principles bearing on the matter. Mr. Rajah Ayyar contended that before a threatened invasion of the right can be made the basis for the issue of an injunction, there must be a finding that if th, defendants acts were carried into effect violation of the plaintiff's right will be the inevitable result. In Fletcher V/s. Beasley (1885) 28 Ch. D 688 at p 696 : 54 L J Ch. 424 : 52 L T 541 : 33 W R 745 Pearson, J. cites a passage from the judgment of Lord Brougham, L.C. in Ripon (Earl of) V/s. Hobart (1834) 3 Myl. & K 169 : 3 L J (N S) Ch. 145 : 41 R R 40, which in my opinion accurately sums up the principle to be applied: In matters of this description, the law cannot make over-nice distinctions, and refuse the relief merely because there is a bare possibility that the evil may be avoided. Proceeding upon practical views of human affairs, the law will guard against risks which are so imminent that no prudent person would incur them, although they do not amount to absolute certainty of damage. Nay, it will go further, according to the same practical and rational view, and, balancing the magnitude of the evil against the chances of its occurrence, it will even provide against a somewhat less imminent probability in cases where the mischief, should it be done, would be vast and overwhelming.