JUDGMENT S G SHAH, J. 1. Heard learned advocate Mr.Manan K. Paneri appearing with Mr.B.D. Karia for the appellant and learned advocate Mr.Devang Bhatt appearing with Mr.H.S. Munshaw for the respondent/s. Perused the record. 2. The appellant is original plaintiff before the trial Court and respondent before the first Appellate Court, whereas, respondent is original defendant before the trial Court and appellant before the first Appellate Court. 3. For the sake of convenience, we will refer the litigants with their designation in original litigation being Civil Suit No.173 of 1993. The plaintiff has preferred such suit claiming compensation of Rs.50,000/- because of damages to his field due to heavy flow of water from dam which was broken down due to improper construction and maintenance by the defendant and, thereby, negligence of the defendant in controlling the water which was collected by them against the natural flow of such water by constructing earth dam. The meaning of earth dam is quite clear that natural flow of water in river has been stopped and collected by making a wall of mud and clay (MATI), which is called as earth bank mound (PALO). 4. After hearing both the sides, the Civil Court has decreed such suit by its judgment and order dated 30.4.1998. Such judgment of Civil Judge (SD) of Dhrngadhra has been challenged by the defendant before the District Court at Surendranagar. The Joint District Judge of Surendranagar @ Dhrangadhra has, by impugned judgment dated 23.10.2001 allowed the appeal of the defendant and thereby dismissed the suit filed by the plaintiff even after referring the judgment of the Hon'ble Supreme Court, though they are in favour of the plaintiff. 5. Being aggrieved by such judgment of dismissing the suit by the first Appellate Court, the plaintiff has preferred present appeal wherein while admitting the appeal, the Coordinate Bench has, as back as on 14.10.2003 framed following questions of law as substantial questions of law for determination in this appeal, which are as under: - (1) Should the period of limitation start on the date of damage was suffered by the plaintiff or should it start on the date the damage has been claimed and refused; (2) Whether the Court below can be said to have erred in holding that the damage suffered by the plaintiff was on account of vis major. 6. 6. Therefore, this appeal being a Second Appeal, initially, this two questions needs to be resolved so as to ascertain that whether it is in favour of the plaintiff or the defendant. 7. The first question is with reference to limitation. The perusal of judgment by the Civil Court confirms that the Civil Court has categorically framed an issue being issue No.3 that whether the suit is time barred and answered such question in negative. Thereby, holding that the suit is not time barred. For the purpose, if we peruse the discussion in paragraph No.8 of the judgment by the trial Court, it becomes clear that though such issue has been raised by the defendant before the trial Court in the form of their pleading in their Written Statement at Exh.13, the Civil Court has recorded that initially suit was filed in forma pauper as a indigent person but since suit is for damages for the tortuous act of the defendant, it is to be filed within three years from the date of incident or cause of action and, thereby when cause of action had arose on 15.7.1982, the suit needs to be filed before 14.7.1985; whereas application as an indigent person was filed only on 11.11.1987. However, learned advocate for the plaintiff has pointed out that after the incident on 15.7.1982, the petitioner appellant has already demanded the compensation from the defendant by his application dated 1.9.1982 and when there was no response by the respondent, the plaintiff has issued notice through advocate on 13.4.1987 and when defendant have even failed to reply to such notice, plaintiff has preferred this suit contending that cause of action would arise only from the date of denial of claim by the defendant and cause of action would remain in force when it was under consideration before the defendant and, therefore, when defendant have never denied / refused to pay compensation, there was no reason for the plaintiff to file suit and, therefore, there is no question for the defendant to prove such factual details. The witness of the defendant was cross examined specifically to confirm that whether they have responded to the letter dated 1.9.1982; copy of which is produced at Exh.39, and notice dated 13.4.1987; copy of which is produced at Exh.40 or not. The witness of the defendant was cross examined specifically to confirm that whether they have responded to the letter dated 1.9.1982; copy of which is produced at Exh.39, and notice dated 13.4.1987; copy of which is produced at Exh.40 or not. In reply to such query, the witness has disclosed on oath before the Court that he will able to confirm it only after inquiry from the office and that he could not reply to such question without referring the record. However, though he admit that he is ready and willing to produce such record before the Court, thereafter, he has never produced such record before the Court nor disclosed the factual details as asked for by the plaintiff's advocate and, therefore, adverse inference was drawn that when defendant have neither admitted the claim nor even refused the claim and did not respond to the demand application and notice by the plaintiff and did not disclose before the Court that what steps they have taken, cause of action survives and remained continuous. In support of such stand, the plaintiff has relied upon the decision in the case of Jay Laxmi Salt Works (P) Ltd v. State of Gujarat reported in, (1994) 4 SCC 1 wherein Hon'ble Supreme Court has categorically held that computation of period for filing suit would arise from the date when authority refuse to pay damages, observing that otherwise it would cause grave injustice and that a common man and average citizen cannot afford to pay huge court fee stamp and would be deprived of his just claim only because he was pursuing his remedy vigilantly in the Government of a welfare State. Thereby, the Hon'ble Supreme Court has in paragraph No.15 specifically held that the computation for purpose of limitation would commence either from the date when malfeasance, misfeasance or non-feasance occurred or from the date when damage took place or where claim is lodged within period allowed by law and the damage is not ascertained then from the date of the claim when claim is rejected. It is further held that it is the improper performance of duty or arbitrary action of the authorities in not accepting the claim when damage was found and the limitation to file the suit arise from the date when the government refused to pay the amount of damages. It is further held that it is the improper performance of duty or arbitrary action of the authorities in not accepting the claim when damage was found and the limitation to file the suit arise from the date when the government refused to pay the amount of damages. Thereby, since the rejection was not communicated nor the copy of report was supplied despite the request, the suit could not be said to be barred by time. 8. The trial Court has, therefore, relied upon such judgment which is referred before it after discussing factual details that since there is no rejection of claim by the defendant, cause of action survives and limitation would generally counted from the date of rejection only. Unfortunately, the Appellate Court has misinterpreted the letter dated 1.9.1982 observing that it is not a claim for compensation for damages because earth dam had broken down, but it is for general damages. However, the perusal of such document makes it clear that there is reference of damage to the property by dam. Here, it would be appropriate to recollect again the wordings by the Hon'ble Supreme Court in above referred judgment when Hon'ble Supreme Court has categorically observed that when an average citizen is pursuing his remedy vigilantly in the Government of a welfare State, the State authorities should not be that much technical in dealing with such common citizen. 9. Therefore, prima facie, when plaintiff has stated on oath that he has claimed for compensation by his letter dated 1.9.1982 and when defendant did not produce any document to confirm that such application was dealt with in accordance with law and that plaintiff claim is not proper and correct, there is reason to believe that defendant is hiding factual details from the Court and, therefore, when plaintiff's evidence is not rebutted by the defendant, its interpretation by the trial Court cannot be discarded as it is done by the Appellate Court though the Appellate Court has referred the decision of Hon'ble Supreme Court. 10. Unfortunately, it seems that the appellate Court has mixed the question of limitation with the question of negligence and held that since defendant is not negligent, suit is not within the limitation. 10. Unfortunately, it seems that the appellate Court has mixed the question of limitation with the question of negligence and held that since defendant is not negligent, suit is not within the limitation. This is nothing but material irregularity and illegality and, therefore, the question No.1 is answered so as to confirm with the decision of the Hon'ble Supreme Court in the case of Jay Laxmi Salt Works (P) Ltd (Supra) that suit cannot be simply thrown out on the ground that it was filed beyond the period of limitation and that period of limitation is to be calculated from the date when claim is refused. Thereby, in the present case, when defendant has never refused the claim by the plaintiff and when defendant has failed to prove that what action they have taken on such claim, the cause of action remains survive in favour of the plaintiff and, therefore, it is held that suit is not barred by limitation. 11. So far as second question is concerned, it cannot be ignored that though such plea is taken by the defendant before the first Appellate Court, unfortunately, the Written Statement filed by the defendant before the trial Court does not disclose such defence at all. The perusal of Written Statement makes it clear that there is general denial of the plaintiff's pleading and there is no specific pleading to confirm that it was act of God. 12. On the contrary, the record shows that there is admission by the witness of the defendant himself that earth dam broken because of heavy rain and that at least 10 feet deep water flowed from the dam. It is also admitted that thereafter dam was never repaired and that it was break down at 2.00 am in midnight and, therefore, there was no help or support to the surrounding fields to avoid the damage by heavy flow of water with sand. The scrutiny of entire evidence on record makes it clear that there is only one deposition by the defendant witness namely; Babubhai Hirjibhai Satapara at Exh.48/C, who was Additional Assistant Engineer and who has studied only upto Diploma in Civil Engineering. The scrutiny of entire evidence on record makes it clear that there is only one deposition by the defendant witness namely; Babubhai Hirjibhai Satapara at Exh.48/C, who was Additional Assistant Engineer and who has studied only upto Diploma in Civil Engineering. Though he has stated that there was no technical break down in the dam, the fact remains that the earth dam could not stop the flow of water of the river and when natural flow of the water in the river had been restricted and diverted to store of such water when only created by the defendant by a earth dam and thereby, when such dam had broken down at midnight and thereby huge quantity of water has been released without control from the dam, such water has made its own way and certainly goes to the nearby fields with sand and damaged the filed and water well in the field of the plaintiff. Therefore, such act can never be considered as an act of God when earth dam created by the defendant had break down. However, irrespective of such factual details on record which is by all means in favour of the plaintiff when there is no pleading at all by the defendant before the trial Court, the first Appellate Court has erred in relying upon such plea which was raised before the first Appellate Court. 13. Irrespective of such technicality, the decision in the case of Vohra Sadikbhai Rajakbhai v. State of Gujarat reported in, (2016) 12 SCC 1 , Hon'ble Supreme Court has categorically confirmed that merely by saying that the level of water in the dam increased because of monsoon rains and that the water was released because damage to the dam and, therefore, authority is not responsible, is not correct position of the law. In paragraph No.26, it is categorically held that what needs to be examined is to see that whether damage to the property was a result of an inevitable accident or unavoidable accident which could not possibly be prevented by the exercise of ordinary care, caution and skill i.e. it was an accident physically unavoidable making it clear that while examining this issue, one has to keep in mind that the onus was on the respondents to satisfy the aforesaid requirements. Therefore, the Hon'ble Supreme Court has held that when respondent have not rebutted the evidence by the plaintiff and could not perform their burden and onus to prove that accident was unavoidable and when it is clear that dam was not over flow by heavy rain but it was due to break down and because of collection of water for which it was not built and, thereby, it was the duty of the defendant to release the water beyond certain limit from the dam in the river so as to avoid the destruction or damage on its own and flow of water in surrounding area / field. Thereby, when defendant did not keep the level of water in dam sufficiently low to take care of ensuing monsoon rain so as to avoid its destruction by calculation of more water because of heavy rain, it can certainly be considered as negligence on the part of the defendant. 14. In view of above discussion and detailed discussion in judgment by the trial Court, when I am relying upon the decision of Vohra Sadikbhai Rajakbhai (Supra) by the Hon'ble Supreme Court to hold that such act can never be said as vis-major i.e. Act of God or the act which could not be controlled by the defendant. Therefore, issue No.2 is also answered in favour of the appellant holding that not releasing the water from the dam in rainy season so as to allow the dam to collect fresh rainy water only upto the limit of the capacity of the dam is nothing but a statutory negligence on the part of the concerned authorities and, thereby if such dam has got break down because of arrival of more water, may be because of heavy rain, the person like plaintiff who has suffered damages because of sudden and speedy flow with sand of such water from the dam which has got break down, he is certainly entitles to be compensated for the damages suffered by him. 15. 15. So far as factual details are concerned, this being Second Appeal it is certainly restricted to the law point only and, therefore, I do not wish to enter into factual details to scrutinize the same on either side, more particularly, when trial Court has considered all the aspects in detail and based upon evidence available on record awarded only Rs.25,000/- towards damages against the claim of Rs.50,000/- by the plaintiff. 16. The Appellate Court has also failed to appreciate that the damaged land may not remain uncultivated throughout the suit period and, therefore, cultivation of damaged land by the plaintiff does not prove that there was no damage to the agriculture field and water-wall due to heavy flow of water with sand for which plaintiff has adduced evidence but it cannot be rebutted by the defendant. 17. I have gone through the judgment of the trial Court; so also judgment of the first Appellate Court. There is material irregularity and illegality in the judgment by the first Appellate Court in not relying upon the decision of the Hon'ble Supreme Court and there is absence of proper appreciation of evidence. Therefore, I endorse the judgment by the trial Court by quashing and setting aside the judgment of first Appellate Court. Thereby, the appeal is allowed which results into allowing the appeal as per the judgment of the trial Court by dismissing the suit before the Appellate Court. 18. R & P, if any, be sent back to the Tribunal at the earliest. Direct Service is permitted.