SECRETARY OF STATE Vs. ALLADIN

JUDGEMENT

(1.) This and the connected Appeals Nos. 2055, 2065 of 1925 and 2109 of 1925 arise out of six suits brought by plaintiffs, who were non-occupancy tenants in the district of Saharanpur, for damages against the defendant the Secretary of State for India-in-Council, and for injunction. The suits have been decreed by the Courts below for varying amounts of damages, but the relief of injunction has been disallowed. The defendant preferred these second appeals. The plaintiffs have acquiesced in that part of the decree which dismissed their claim to injunction.

(2.) The circumstances which led to the institution of the aforesaid suits are these: The Gangetic canal was made by Government in 1860 or thereabout. At a certain point near Saharanpur it crossed the bed of a torrent of rain-water, called Rao Pathri, descending from the mountainous regions in the vicinity. To prevent the stream and the canal intersecting each other and the resulting damage to the canal works, a super-bridge was constructed to let the stream pass across the canal and thence to flow on in a certain direction. To achieve this end the stream had to be diverted from its old bed at a point further up, at some distance from its junction with the canal, This was necessary, apparently because the place where the canal intersected the old bed of the stream was deltaic, and the passage of water over the super-bridge at that place would have been difficult to control. Across the canal where the stream left the super-bridge as on the super-bridge itself embankments were constructed on either side to prevent the overflow of water and to avoid the submergence of neighbouring lands. For this device to be successful the silt, which would in course of time raise the level of the bed of the stream, especially along the super-bridge, reducing the height of embankments from such bed, should be periodically removed. It was alleged by the plaintiffs- respondents that this device was meant to protect the neighbouring lands against possible overflow of water but it was maintained on behalf of the defendant that it was for their own purposes that the embankments had been erected and silt was removed from time to time. But whether the main object was one or the other, it is not disputed that as long as the arrangement referred to lasted the lands in the neighbourhood were not overflowed. It is not material whether the resultant protection was only incidental, or whether it was the primary object of the construction of the embankments and of the periodical removal of the silt. It has been found as a fact that silt used to be removed by the Canal Department whenever it was found necessary to do so up to the year 1917, when the practice was discontinued and in the course of a few years the deposit of silt was so great that the water of the stream overflowed its bank and passed on the plaintiff's lands which were on a lower level, causing injury to their crops in 1922. The suits in question were brought by tenants, who are respondents here, and who were adversely affected by the overflow of water, for damages against the defendant, the Secretary of State, on the allegation that the injury complained of was the direct consequence of the failure of the Canal Department to so control the stream by removal of silt deposit as to allow the stream to flow in its channel instead of cutting through the plaintiff's lands.

(3.) The defendant's appeals have been pressed on three grounds, namely: 1. That the civil Court has no jurisdiction to award the compensation claimed. 2. That the defendant-appellant was not responsible to remove the silt or to take any other step to prevent the passage of water on to the plaintiff's lands in the ordinary course of nature, and that the loss, if any, suffered by the plaintiffs, is the outcome of vis major. 3. That the plaintiff-tenants having obtained ordinary tenancy leases in respect of the lands damaged after 1917, with their eyes open, cannot claim damages for what they could have easily anticipated.