SITARAM MOTIRAM Vs. KESHAV RAMCHANDRA

JUDGEMENT

(1.) This is an appeal against an order passed by the Assistant Judge at Jalgaon in Civil Appeal No. 138 of 1942 confirming the decree of the Subordinate Judge of Bhusawal in regular suit No. 328 of 1941. The plaintiff in this case was the owner of survey No. 80 which is on a lower level than the survey No. 82 belonging to the defendant which adjoins it. The relevant positions of the two survey numbers can be seen from the map which is Ex. 34 in this case.

(2.) The plaintiff's case was that till the year 1940 the rain water from the defendant's land, survey No. 82, used to flow along a broad channel from B to D in the defendant's survey number and from D to E in the plaintiff's survey number. In the year 1940 the defendant put up an embankment from the point B along the line BC so as to collect all the rain water which formerly used to flow generally along the line BDE. He also dug a trench to the south of the embankment BC along the broad channel BG with the result that all the water collected by reason of the embankment flowed along that trench BG. The defendant went further and dug a trench in the portion shown red in the map within the Survey No, 80 belonging to the plaintiff. The result of all this was that all the water from the defendant's survey number came to be discharged in the plaintiff's survey number with considerable force and caused damage to the plaintiff's land. The plaintiff therefore prayed, (1) for a mandatory injunction enjoining the defendant to keep the flow of the rain water from his land Survey No. 82 into the plaintiff's land, Survey No. 80 as it formerly was, viz., from the point B to point D in the plan, (2) for a mandatory injunction directing the defendant to fill the trench BG and to remove the bund BC, and (3) for a permanent injunction restraining the defendant from causing damage to the plaintiff's land by altering the coarse of the rain water. The defendant admitted that the rain water from his land survey No. 82 flowed into the plaintiff's survey No. 80, but contended that the course of the rain water was changed not by him but by the previous owner of survey No. 82 prior to his (defendant s,) purchase in the year 1917. He said that since then the rain water had been flowing as at present. He further denied that any damage had been caused to the plaintiff's land by reason of the diversion, and contended that the suit was barred by limitation.

(3.) The learned trial Judge held that the original course of the channel was altered to its existing condition in the year 1940. He held that the suit was in time and found as a fact that the plaintiff had suffered damage by reason of the alteration of the course of the water channel. He therefore issued an injunction directing the defendant to fill the channel BG in the plan, Ex. 34. He further granted a permanent injunction restraining the defendant from allowing the rain water from his land, survey No. 82, to flow into the plaintiff's land survey No. 80 along the channel BG. Lastly, a permanent injunction was given to the defendant restraining him from letting the rain water from his land, survey No. 82, flow into the plaintiff's land, survey No. 80, so as to damage the plaintiff's land. The defendant was directed to pay the costs of the suit and to bear his own. Against that order the defendant filed an appeal in the Court of the District Judge at Jalgaon. The learned Assistant Judge who heard the appeal found as a fact that alteration was made in the course of the rain water in April, 1989, and that the plaintiff's land had, in fact, been damaged as a result of the said alteration. As a result of these findings he confirmed the order passed by the lower Court. He further allowed the cross-objections filed by the plaintiff in respect of removal of the embankment BC. He was of opinion that the retention of the dam would frustrate the plaintiff's object as it would still block the entry of the water into the defendant's land and thus divert all that water into the plaintiff's land by way of surface drainage though not along the trench BG which was directed to be filled up. He therefore allowed the cross-objections and directed the defendant to remove the embankment BC. It is against that order that the defendant has come in second appeal,