Baij Nath Prasad v. Bhagwati Din — 1996 DIGILAW 1479 (ALL)

Judgment : S.P. Srivastava 1. THIS is a defendants second appeal arising out of a suit for recovery of damages along with an interest at the rate of 6% per annum pendente lite and future. 2. THE trial court had decreed the suit in part assessing the extent of damages to be only Rs. 5,500 as against Rs. 11,000 as claimed. THE defendants felt aggrieved by the same, preferred an appeal which was dismissed, hence, the present second appeal. I have heard the learned counsel for the parties and have carefully perused the record. 3. THE facts in brief, shorn of details, lie in a narrow compass. Prior to the filing of the suit giving rise to the present appeal, the plaintiff had filed a suit being suit No. 1 of 1976 seeking a decree of permanent prohibitory injunction restraining the defendants from demolishing or damaging the nali detailed in the map attached with the plaint which was used for irrigating the agricultural holdings of the plaintiff, further requiring the defendants not to interfere in the plaintiffs use of nali in dispute for the purpose of irrigating his agricultural holdings. 4. DURING the pendency of the aforesaid suit, the defendants has demolished a large part of the nali in suit. The plaintiff in the circumstances got his plaint amended and claimed a further relief claiming a decree of mandatory injunction requiring the defendants to restore the nali in question to its original condition and in case they failed to do so prayed that the same be allowed to be restored by the plaintiff through court. The aforesaid suit had been filed asserting that the plaintiff had acquired a prescriptive right of assessment. In regard to the user of the nali for the purpose of irrigating his agricultural holdings taking water from the two tanks apart from his own well. A part of the nali in dispute passed through the land belonging to the defendants. The suit referred to above who dismissed by the trial court but an on appeal by the plaintiff reversing the decree of the trial court, his suit was decreed by the first appellate court. A part of the nali in dispute passed through the land belonging to the defendants. The suit referred to above who dismissed by the trial court but an on appeal by the plaintiff reversing the decree of the trial court, his suit was decreed by the first appellate court. The appellate decree was for a mandatory injunction directing the defendants to restore the nali in suit within three months and further restraining them permanently from interfering with the right of the plaintiff to irrigating his fields through the nali in suit from his tube well installed in chak No. 621 and from the tank in plot Nos. 602 and 610 as shown in the map attached with the plaint. The decree further provided that if the defendants failed to restore the nali within three months from the date of the decree, the plaintiff would be entitled to get it restored at the cost of the defendants. 5. THE appellate court, while granting the decree in terms as indicated hereinabove, had recorded a clear cut finding that it was established that the plaintiff was irrigating his fields through the nali in suit for the last more than 20 years peacably, without interruption, and as of right. THE appellate court had observed that it had come in evidence that the plots were irrigated only with the water of the tank but it did not mean that the user was not continuous relying upon various decision of various High Courts. THE appellate court had come to the conclusion that the user of the nali could not be said to be of a temporary nature and the right to take water through the nali could be acquired by prescription. THE appellate court found it proved and established from the evidence on record that the plaintiff had acquired right of easement in respect of the nali in suit to irrigate his fields. 6. THE decree passed by the first appellate court was sought to be challenged by the defendants in Second appeal before this Court but without any success as the second appeal was dismissed in limine on 1.8.1979 observing that the findings recorded by the first appellate court did not require any interference. The suit giving rise to the appeal was filed on 30.4.1979. The plaintiff in this suit had asserted that the defendants had during the pendency of the suit Mo. The suit giving rise to the appeal was filed on 30.4.1979. The plaintiff in this suit had asserted that the defendants had during the pendency of the suit Mo. 1 of 1976 demolished a portion of the nali in dispute on 8.2.1976 which was restored on 9.4.1979. It was further asserted that the nali in dispute provided the only source of irrigation to his agricultural holdings and on account of the illegal action of the defendants for want of irrigation, the crops sown by him in his agricultural holdings, the plaintiff could not even undertake the sowing operation of the crops in the Jaid Fasal of the year 1976. However, on having some rain water, he succeeded in sowing Kharif crop but for want of irrigation on account of demolition of the nali, the entire crop was damaged. 7. IT is further asserted that on having some rain water, the Rabi crop for the year 1977 was sown but for want of irrigation facility, the said crop dried up and was damaged. The plaintiff's crop of Urd, Dhan and Wheat which were to be planted in January, 1976, September, 1979 and April, 1977 were completely damaged. The plaintiff quantified the damages to be of an amount of Rs. 11,000. 8. IN paragraph 16 of the plaint as it originally stood, the plaintiff had shown that the cause of action for the suit had arisen on 8.2.1976 when the nali in dispute had been damaged and thereafter on the dates when the crops had dried up. However, the paragraph 16 of the plaint was amended vide the order of the court dated 16.5.1979. IN amended paragraph 16, the plaintiff asserted that the cause of action for the suit had arisen on account of drying of the crop in June, 1976, September, 1976 and April, 1977. The suit of the plaintiff was contested by the defendants raising various pleas denying the plaint allegations. 9. THE trial court on an appraisal of evidence and materials on record came to the conclusion that the plaintiff was deprived of the facility of irrigation during the period in question. The suit of the plaintiff was contested by the defendants raising various pleas denying the plaint allegations. 9. THE trial court on an appraisal of evidence and materials on record came to the conclusion that the plaintiff was deprived of the facility of irrigation during the period in question. It also found that actually no other source of irrigation apart from the nali in dispute was available to the plaintiff and the disputed nali which was the subject-matter of the suit No.1 of 1976 was the only source of irrigation for the agricultural holdings of the plaintiffs, viz., plot Nos. 482 and 491. THE trial court further found that the nali in dispute having been broken by the defendants in February, 1976, the plaintiff was left with no other source of irrigation with the result that his crops dried up and he could not have proper yield and suffered loss. THE trial court came to the conclusion that the loss and damages occasioned to the plaintiff during the period in question was the direct consequence of the defendants' wrongful act. Since the plaintiff had no proper yield nor could save his crop by irrigating his plot from other sources, the resultant damages could not be held to be remote and, therefore, the defendants were liable to pay damages to the plaintiff which he suffered on account of non- irrigation of his crops and failure to sow the crop for want of irrigation. On an appraisement of evidence on record, however, the extent of damages suffered by the plaintiff was assessed to be only Rs. 5,500. 10. THE first appellate court had, as already indicated above, dismissed the appeal filed by the defendants thereby confirming the findings of the trial court. While admitting this appeal under Order XLI, Rule 11 of the Civil Procedure Code, this Court had indicated that the substantial question of law on which the appeal was being admitted was as to whether the courts below erred in ignoring the plea of limitation taken in the amended written statement by the defendants appellants and whether the suit was barred by Article 85 of the Limitation Act, 1963. The learned counsel for the defendants-appellants has confined his submissions in support of this appeal only in regard to the implications arising under the provisions contained in Article 85 of the Indian Limitation Act, 1963 and has urged that the suit of the plaintiff was clearly barred by time and the courts below have erred in law in decreeing the same. The contention of the learned counsel for the appellants is that as the nali or the water channel in question, according to the own showing of the plaintiff, had been damaged resulting in the obstruction of the flow of water on 8th February, 1976, the period of limitation for filing the suit for the recovery of damages of the crops as claimed by the plaintiff had to be computed in accordance with the Article 85 of the Indian Limitation Act, 1963 which provides that the starting point for computing the period of limitation which is prescribed to be three years had to be taken as the date of the obstruction which in the present case being 8th February, 1976 and the suit which had been filed on 30.4.79 was liable to be thrown out being barred by limitation. What has been urged is that the obstruction to the water channel was complete on 8th February, 1976 and this obstruction having become complete, its effect which may have been continuing could not give a fresh starting point for computing the period of limitation. 11. THE learned counsel for the respondent plaintiff has, however, urged that the obstruction to the water channel had to be treated as a continuous act of wrong in respect whereof the cause of action is renewed de-die-in-diem so long as the obstruction continues and further that Article 85 of the Limitation Act has to be read subject to the provisions contained in Section 23 of the Limitation Act by virtue of the stipulation contained in Section 3 thereof. What has been urged is that as provided under Section 23 of the Limitation Act, 1963 in the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results. What has been urged is that as provided under Section 23 of the Limitation Act, 1963 in the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results. As a consequence, the learned counsel contends that the suit as framed with the cause of action as disclosed in the plaint, could not have been taken to have been filed beyond the period of limitation as urged by the appellants. 12. IT has been strenuously contended that taking into account the time when the injury had in fact resulted on account of the non-availability of the water supply through the water course in question, the period of three years prescribed under Article 85 could not be taken to have run out and therefore, the suit had been filed well within time. I have given my anxious consideration to the rival contentions of the learned counsel for the parties. 13. THE provisions contained in Section 3 of the Indian Limitation Act, 1963 clearly stipulate that the period of limitation prescribed under the schedule appended to the Act read with Section 2 (j) remains subject to the provisions contained in Sections 4 to 24 (inclusive) of the Act. It is, therefore, obvious that the provisions contained in Section 23 of the Act has to be reconciled with the articles contained in Schedule 1 of the Limitation Act. 14. IT seems to me that where the plaintiff has right to take water through a channel running through the defendants' land, an obstruction to the flow of water by the defendants has to be treated as a continuing wrong to which Section 23 of the Limitation Act would apply. This Court in its decision in the case of Mst. 14. IT seems to me that where the plaintiff has right to take water through a channel running through the defendants' land, an obstruction to the flow of water by the defendants has to be treated as a continuing wrong to which Section 23 of the Limitation Act would apply. This Court in its decision in the case of Mst. Masooma Bibi and others v. Haji Mohammad Said Khan and others, AIR 1942 All 77, had observed that the obstruction to a water course and to the flow of a water is a continuing wrong as to which the cause of action is renewed de-die-in-diem so long as the obstruction causing such interference is allowed to continue and had, placing reliance on the decision of the Privy Council in the case of Rajroop Koer v. Abdul Hussain, ILR 6 Cal 394, noticing that there was no distinction between obstruction to a water course and obstruction to a right of way, had indicated that in both the cases, the cause of action is taken to be renewed de-die-in-diem so long as the obstruction continues. 15. IN the circumstances indicated above, the interference with the right of irrigation through a water channel or nali of a person has to be treated as a continuing wrong even though there may not be a water supply for some part of the year. Therefore, there can be no escape from the conclusion that a suit has to be treated to be within time if it is brought within three years of the last date to which the wrong continued. IN the present case, the water channel in dispute had been restored by getting the decree passed in Original Suit No. 1 of 1976 executed. There is no dispute that the obstruction was removed on 9.4.1979. The present suit which had been filed on 30.4.1979 was therefore, clearly within time. 16. THE submissions made by the learned counsel for the appellants are clearly devoid of merit and considering the facts and circumstances of the present case noticed hereinabove, they are not at all acceptable. In view of my conclusion indicated hereinabove, no justifiable ground has been made out for any interference in the impugned decree, while exercising the jurisdiction envisaged under Section 100 of the Code of Civil Procedure. 17. THIS second appeal is accordingly dismissed with costs.