HARDEO Vs. RAMCHANDRA

JUDGEMENT

(1.) THE parties to this litigation are brothers. In December 1917 there was a partition between them, and at that partition S. No. 53 of mouza Pardi Asra came to the share of Hardeo, and an adjoining field, S. No. 52 of the same village, went to Ramchandra. In S. No. 53 there was a garden of orange, mango, guava and lime trees. In S. No. 52 there was a well from which this garden was watered. At the partition there was an agreement between the parties that Hardeo had a right to get his trees watered from the well in S. No. 52. But as in 1918 the defendant obstructed the plaintiff from getting water from the well the latter filed a suit and got an injunction against the defendant by which the defendant was directed to allow the plaintiff to take water from the well for watering the old trees in field S. No. 53. The decree in that case was passed on the 28th February 1920. The parties came up to this Court in Second Appeal. The present suit is by Hardeo for damages caused to his trees by want of water. His case is that his orange, mango, guava and lime trees had dried up in consequence of the defendant's obstruction to the plaintiff from getting water from the well. He filed two suits for damages: the first suit No. 56 of 1922 in the Court of the Sub-Judge, Basim, was filed on the 15th March 1922 for damages owing to the orange trees having dried up about the 1st of April 1920, in which he claimed Rs. 2,000; and the second was filed three days after the filing of the first, Suit No. 58 of 1922 in the same Court, for damages owing to the other trees, viz., mango, guava and lime trees, having dried up about May 1921, amounting to Rs. 1,100. The two suits were heard together, and the first Court consolidated and treated both as one claim and passed a single decree in which he gave the plaintiff Rs. 1,000 as damages. The Court held that the fact of obstruction in 1918 was res judicata by reason of the decision in the previous suit for injunction; that the obstruction continued up to October 1921; and that the cause of action was a continuing one, the claim not being barred by limitation.

(2.) ON appeal the lower appeal Court finds that the suits were rightly consolidated, that the first Court had power to try the consolidated suits, and that the suits could be brought. As regards the question of limitation, the learned Judge of the lower appellate Court finds that the case is a simple case of breach of contract and falls under Article 115 of the Limitation Act, limitation commencing from the date of the breach complained of in 1918, and that the suit was therefore barred by limitation having been brought in 1922. The Judge further held that the defendant was not liable for the value of the trees and found that the damages claimed are not direct and natural and should not be allowed. As to the extent of the damage the lower appellate Court agreed with the opinion of the first Court.

(3.) IN the case of Barley Main Colliery Co. v. Mitchell [1886] 11 A.C. 127 the lessees of coal under the respondent's land worked the coal so as to cause a subsidence of the land and injury to houses thereon in 1868. For the injury thus caused the lessees made compensation. They worked no more, but in 1882 a further subsidence took place causing further injury. There would have been no further subsidence if an adjoining owner had not worked his coal, or if the lessees had left enough support under the respondent's land. And in that case it was held that the cause of action in respect of the further subsidence did not arise till that subsidence occurred, and that the respondent could maintain an action for the injury thereby caused.