Judgment :- Aggrieved against the judgment and decree of the Additional District Judge, Vellore in A.S.No.224 of 1991, the plaintiffs in O.S.No.17 of 1984 on the file of the Sub Court, Tirupathur have filed the second appeal. 2. The said suit was filed by the plaintiffs for the relief of recovery of Rs.15,500/= as compensation with future interest from the defendants with the following allegations. The property involved in the suit viz., a well and attached lands are belonging to the plaintiffs by purchase by the first plaintiff on 24.4.1964 and the second plaintiff on 7.7.1969 through registered sale deeds. The well is common to both the plaintiffs. The plaintiffs are cultivating the lands with the help of the said well. While so, in September, 1983, the second defendant and one Junior Engineer came there and without obtaining sanction of the plaintiffs, they damaged the well and closed the same by putting mud inside the well by taking the mud from the lands of the plaintiffs. Therefore, because of the highhanded action of the defendants, the plaintiffs have claimed Rs.10,000/= for the purpose of digging the well again and Rs.3000/= for levelling the land. The plaintiffs also issued notice to the defendants on 3.10.1983 for which the first defendant alone has given reply notice on 18.10.1983 with false allegations. Therefore, the plaintiffs happened to file the suit. 3. The suit was resisted by the first defendant only by filing written statement with false allegations. The well in question was not in good condition and during September, 1983, there was heavy rain in Govindapuram village and due to the heavy rain, Govindapuram tank was likely to breach and the well in question became damaged due to its location adjacent to the bund and it got damaged by the mud drained from the bund. The first plaintiff, no doubt, is residing in a thatched house adjacent to the tank bund and there was a situation that the bund may breach at any time because of heavy rain. The first defendant had to make the bund strong by putting mud upon the bund from the land of the plaintiffs with their consent. But, for the said action of the first defendant, there would have been breach upon the bund and damage to the Vaniyambadi Town and the Railway Station. The first defendant had to make the bund strong by putting mud upon the bund from the land of the plaintiffs with their consent. But, for the said action of the first defendant, there would have been breach upon the bund and damage to the Vaniyambadi Town and the Railway Station. Therefore, the contention of the plaintiffs as if the defendants highhandedly, without consent of the plaintiffs, damaged the well by digging mud from their lands, etc., are false and incorrect and thereby the suit is liable to be dismissed. 4. After trial, the Sub Judge, Tirupathur has elaborately discussed the evidence and other attending circumstances and has found and come to the conclusion that the well belonging to the plaintiffs was damaged only due to the action of the defendants and they are liable to pay compensation to the plaintiffs and consequently, decreed the suit as prayed for. 5. On appeal by the first defendant alone in A.S.No.224 of 1991 before the Additional District Judge, Vellore, the Additional District Judge, after analysing the available evidence and other circumstances, has come to the conclusion that the well in question belonging to the plaintiffs was not damaged by the action of the defendants and instead it became damaged due to the drain of mud put upon the bund by the defendants for the sake of safeguarding the people of Vaniyambadi at large and Railway Station, etc., and such action cannot be found fault as if it is a wilful one and it should be construed as an act of God (vis major) and consequently allowed the appeal and dismissed the suit. 6. I have gone through the entire oral and documentary evidence available in this case in the light of the judgments of both the courts below and the arguments of the counsels appearing for either side in detail. From this, I am able to see the following important points for appreciation and disposal. According to the written statement filed by the first defendant, it has been categorically admitted that during September 1983, there was heavy rain in Govindapuram village and the village tank became full and that the well in question is lying adjacent to the bund of the said lake and that particularly on 10.9.1983 the well was closed because of the worst condition of the well. Further, it has been admitted that the bunds of the lake were broken and the well was covered by mud of the bund and it was natural calamity. Further, it has been admitted that the lake is under the control of Public Works Department, Vaniyambadi and the said department happened to take steps to protect the people of Vaniyambadi from the breach of the lake due to heavy rain. It has also been specifically admitted that with the oral consent of the plaintiff Salammal who was residing in the thatched house near the bund, the first defendant and the Public Works Department happened to take some sand from the plaintiffs' land and consequently, the well was damaged only due to the heavy rain and also because of the bad condition of the well. Further, the first defendant happened to take coercive steps to protect the broken bund of the lake and safeguard the people of Vaniyambadi Town at that time. Therefore, it is a clearly admitted fact that the defendants alone have taken steps to take mud from the lands of the plaintiffs and put the same upon the bund near the plaintiffs' well in question and the plaintiffs' residence for the purpose of avoiding any possible breach at that time. 7. According to the statement of the first defendant, it was done only with the oral consent of the first plaintiff. But, the first plaintiff has denied that any such consent was given by her and the evidence and pleading of the plaintiffs go to show to the effect that inspite of the first plaintiff's protest that mud should not be taken from the plaintiffs' land, the first defendant and his people, through Public Works Department and Contractor, etc., have highhandedly taken mud from the plaintiffs' lands and put up the same upon the bund near the well in question and during the course of such action, the second defendant being the man of Public Works Department has gone to the extent of putting the mud taken from the lands around the well and inside the well thinking probably that the well is lying in poramboke land accompanied with the apprehension that the existence of the well near the bund may lead to draining of water from the lake slowly and breach of the bund. If it is not so, poor ladies like the plaintiffs, had no occasion to issue notice under section 80 CPC to the defendants through counsel by saying as if the action of the defendants caused damage to their well and loss of agriculture, etc. Further, if really, the first plaintiff had given consent, it is too much on her part to say as if inspite of her protest, the workers of the defendants took mud from the land and put the same upon the bund and well. Therefore, this kind of action rather careless action of the defendants and their workers cannot be construed as act of God or natural calamity. 8. Even if the mud put by them upon the bund drained itself due to the rain into the well and caused damage, that cannot be construed as natural calamity and it should be due to careless and indifferent work done by the second defendant on behalf of the first defendant without taking or foreseeing the precautionary measures in a way to avoid damage to the well or to the thatched house of the first plaintiff. 9. The above observed aspects are confirmed by the specific evidence of the first plaintiff as PW1 to the effect that about seven years back, in the month of Aavani, one Engineer and the second defendant came to the spot and they damaged the parapet wall of the well and filled up the well and they highhandedly taken mud from her lands inspite of her protest and they also commented as if because the well is lying in the poramboke land, they can close the same and that further, under the personal supervision of the second defendant and the Engineer, about 15 labourers were engaged to close the well by taking mud from their own lands and that she never gave consent to take mud from her lands and close the well. Moreover, the plaintiffs have also produced photograph marked as Ex.A5 to show that so many labourers were engaged by the second defendant for the purpose of taking mud and closing the well and that is why the plaintiff happened to issue notice to the defendants through counsel marked as Ex.A27. The evidence of PW1 has been corroborated in material particulars by the evidence of P.Ws.2 and 3. 10. The evidence of PW1 has been corroborated in material particulars by the evidence of P.Ws.2 and 3. 10. Moreover, the evidence of DW1 viz., the concerned Junior Engineer, Public Works Department at the relevant time has categorically admitted that he gave contract to the second defendant in the year 1983 for making the bund of Govindapuram tank strong in the month of July and at that time, there was no water in the lake and only in September, the rain became heavy and he further admitted that on 10.9.1983, when he visited the bund, he was able to see the well of the first plaintiff got damaged and the mud upon the bund drained into the well. It is his further admission that to avoid any possible breach of the tank, the matter was informed to the plaintiff and she was convinced and thereby her consent was obtained and then only mud was taken from the lands of the first plaintiff and it was put upon the bund for the purpose of making the bund strong. It is also his admission that due to the continuous rain, the mud put by them upon the bund gradually drained and filled up the well of the plaintiffs and in that way only the well of the plaintiffs was damaged and so, they have not wilfully damaged the bund and filled up the well. At the same time, in the cross examination, DW1 has gone to the extent of admitting that the bund was proposed to be made strong only for the purpose of giving work to public at large and also as a security measure by avoiding breach of the bund and that they have sent report about the possible breach of the bund and likelihood of damage to the public of Vaniyambadi to the Executive Engineer and other officials. The said report has not been produced in court. It is also admitted by him that they utilised 15 to 20 labourers for putting mud upon the bund and the work was done for three days and during the work for three days, himself and the second defendant was present on the spot and yet, the document showing allotment of the said work to the second defendant has not been produced into court. It is further admitted by DW1 that they did not give any notice to the plaintiffs that the well has to be closed because of the dangerous condition to the bund and it may get breached at any time and at that time, he has admitted that the report has not been sent to the Collector even though maintenance responsibility lies within the limit of the Collector's jurisdiction. It is admitted further by him that the contract in favour of the second defendant came to an end in July 1983 itself and he is not aware as to how in September 1983, the work was given to the second defendant. It is also admitted by him that there is another well near the well belonging to the plaintiffs and there was no drain of mud into that well and there was no move by them to close that well also. 11. The above observed admissions of DW1 clearly go to indicate that DW1 and the second defendant alone appear to have acted in a way against the interest of the plaintiffs and their protest by taking mud from the plaintiffs' land and putting them upon the bund near the well and consequently, closed the well also in a way causing loss to the plaintiffs in doing agricultural work and income thereof. 12. The evidence of DW2, who is also the second defendant, by way of admissions, is to the effect that when he put up mud upon the bund, there was no water in the lake and after expiry of two months of his contract, the water came to the lake due to rain and that since there was a situation of possible breach upon the bund, they contacted the first plaintiff and obtained oral consent and then only they took mud from her lands and put up the same upon the bund for five or six days. In the cross examination also, it has been admitted that he did not contest the suit and he received the notice marked as Ex.A27 and he did not send any reply and that the first defendant alone informed about draining of mud from the bund and closing of the well of the plaintiffs and there was no contract in the month of September 1983 in connection with the work of putting mud upon the bund for making it strong. The well in question would be with the breadth of 12 feet with parapet wall of 2 feet height. It has been significantly admitted that his son is also standing as shown in Ex.A5 photograph and there was no draining of mud in any other part of the lake bund and only near the well of the plaintiffs, there was draining of mud from the bund and it has also been admitted by him that they took mud from the land of the first plaintiff to the depth of one feet and he also assured to the first plaintiff that he would set right the land and that he has gone to the extent of saying that he is not aware of the exact reason as to why the well was closed and probably it may be due to the draining of mud from the bund. These admissions of DW2 also go to indicate that only due to the action of DW2 with the active assistance of DW1, the well of the plaintiffs was damaged and closed. 13. Significantly, the concerned Village Administrative Officer examined as DW3 has spoken to the effect that because of the damage of the well, the lake bund got broken and that in the cross examination, he has gone to the extent of saying that there was draining of mud only near the well in question and he got information of breach of lake bund from one Varadan and Mani his menials and when he went to the spot, he was able to see the well of the first plaintiff got damaged and closed. Further, he has admitted that the said well got damaged on four sides and however, he saw the said well for the first time only on that date. Particularly, he has also admitted that a report was sent by him to the Tahsildar and Collector stating the dangerous position on the spot because of the breach of lake bund and well, he did not give any information to the police about the breach of the bund. Therefore, this kind of admissions of the Village Administrative Officer go to indicate that the evidence of D.Ws.2 and 3 are not consistent and do not appear to be a true and reliable one. Therefore, this kind of admissions of the Village Administrative Officer go to indicate that the evidence of D.Ws.2 and 3 are not consistent and do not appear to be a true and reliable one. On the other hand, it seems that D.Ws.1 to 3 have tried to shirk their responsibility for the loss and damage caused to the plaintiffs' well due to the highhanded, indifferent and careless work done by them. 14. In such circumstances, the reasoning and approach of the Additional District Judge to come to the conclusion as if the defendants and particularly D.Ws.1 and 2 cannot be made responsible for the damage and loss caused to the plaintiffs, in my view, is not correct and justified. On the other hand, the Sub Judge, Tirupathur has elaborately considered and appreciated the evidence and then only come to the conclusion that the defendants are liable to pay compensation to the plaintiffs as claimed in the plaint and consequently, the judgment and decree of the Additional District Judge has to be set aside and the judgment and decree of the Sub Court, Tirupathur has to be restored. 15. Accordingly, I am of the considered view that the second appeal has to be allowed by setting aside the judgment and decree of the Additional District Judge Vellore and restoring the judgment and decree of the Sub Court, Tirupathur. 16. In the result, the second appeal is allowed but, without costs and the judgment and decree of the Additional District Judge, Vellore is set aside and the judgment and decree of the Sub Court, Tirupathur is restored.