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Judgment
P.C. Jain, J.
Col. Sir Harinder Singh Brar, former ruler of the former Faridkot State, filed this appeal under Clause 10 of the Letters Patent against the judgment and decree of the learned Single Judge of this Court dated December 23, 1981, by which his appeal (R.F.A. No. 4 of 1969) was dismissed. The detailed facts are given in the judgment of the learned Single Judge, yet in order to appreciate the controversy, certain salient features of the case may be noticed.
The appellant is the owner and in possession of revenue estate of Bir Ghugiana, tehsil Faridkot, district Bhatinda, bearing Khasra Nos. 1 to 246 measuring 37,662 Kanals 17 marlas. It is alleged in the plaint that the land in dispute has all around it as its boundary, high sand mounds overgrown with weeds and bushes of spontaneous growth ; that in September, 1962 flood water came to the area in between villages Sadhanwala and Pakhi Khurd, which are situated towards North and East respectively of Bir Ghugiana ; that the natural slope of the lands is towards the area of village Sadhanwala and left to itself the water would have flown through the area of village Sadhanwala and not entered the lands of the plaintiff situate in Bir Ghugiana ; that the flood water was temporarily obstructed by the Sapanwala minor which was partly abandoned from the portion of its tail to the boundary of Bir Ghugiana ; that the villagers of village Sadhanwala had constructed bund to protect their abadi flanking the left bank of Sapannwala minor ; that the villagers of village Pakni Khurd had also constructed a bund on the left side to a protect their village abadi ; that due to these obstructions is of the natural flow of water, flood water accummulated there and would in all probabilities had crossed over to the fields of Sadhanwala in its natural course ; that the villagers of village Sadhanwala approached Shri Karam Singh defendant No. 2 the then Sub Divisional Officer (Civil) Faridkot and requested him to cut the natural mounded boundary of Bir Ghugiana at a point near where the Sapanwala minor touched it ; that the plaintiff dissuaded defendant No 2 from making the cut; that on 29th September, 1962, defendant No. 2 with the help of police made two cuts in the outer boundary of Bir Ghugiana a so as to induct the pounded up flood water into the fields of Bir Ghugiana ; that the cut was made by defendant No. 2 deliberately and mala fide and despite protest by the plaintiff and his employees ; that defendant No. 2 kept posted police guard at the said spot ; that the flood water released through the artificial cuts by defendant No. 2 inundated the area of Bir Gugiana and caused damage to the appellant, the details of which read as under :
(i) Loss to the Shisham plantation in the area of 200 acres estimated at Rs 27,000/;
(ii) Loss to 33 acres of paddy crop totalling Rs. 12,000/
(iii) Loss to citrus garden in 12 acres area, 5 years old totalling Rs. 25,000/;
(iv) Loss to cotton crop in 80 acres estimating Rs. 32,000/ ;
(v) Loss to bajra crop in 70 acres of land estimated Rs. 9,800/
(vi) Loss to 75 acres of gowara crop estimated Rs. 10,500/ ;
(vii) Loss to 10 acres of Shiham nursery to the extent of Rs. 10,500/."
It is further averred in the plaint that respondent No. 2 had no right to cause artificial inundation of the area of Bir Ghugiana ; that the appellant had suffered a loss of Rs. 1,26,300/ on account of the wrongful action of respondent No. 2 ; that the tortuous acts by respondent No. 2 were committed by him as an employee of respondent No. 1, while purporting to act in his official capacity in the course of his employment for the benefit of respondent No. 1 ; that respondent No. 1 is therefore, vicariously liable for the wrongful and tortuous acts of the said respondent No. 2 and is liable to make good the damage sustained by the appellant ; that respondent No. 2 is also personally liable to the amount of compensation amounting to Rs. 1,26,300/.
The suit was resisted by respondents Nos. I and 2, who denied their liabilities to pay the amount of damages or compensation claimed by the appellant and pleaded that in September, 1962, area near Bir Ghugiana was badly flooded with rainy water ; that the flood water had accummulated there as a result of which a virtual take running into miles in breadth and length was created; that many villages were marooned in the lake and water was 6 to 7 feet deep at many places ; that the people of the village finding a serious collection of the flood water approached respondent No. 2, who reached the spot and found obstruction to the natural flow of. water caused by the people of Pakhi Khurd by constructing an artificial bund there ; that the plaintiff had stopped the natural flow of waterinto the Bir area by constructing a bund near the Sapanwala minor on the boundary of Bir Ghugiana ; that the drastic situation created by the accumulation of supply of water in between the village Sadhanwala, Pakhi Khurd, Gonewala etc. warranted immediate removal of the bunds constructed by the appellant at the tail of Sapanwala minor and other bund raised by the people of Pakhi Khurd which would have allowed the water deposited there to flow towards its natural course, that is, through the fields of Pakhi Khurd ; that to save loss to the abadi and area of these villages at the request of the villagers and the employees of the appellant respondent No. 2 ordered removal of the bund near the Sapanwala minor so as to allow the flood water to have its natural course ; that the Deputy Commissioner and the Superintendent of the Police visited the spot and justified that action of respondent No. 2 ; that the cuts at the channels were made to save the marooned abadi and havoc in the ilaqua and were not illegaland mala fide ; that the appellant did not suffer any loss due to the aforesaid cuts and the appellant has no cause of action against the respondent. On the pleadings of the parties, the following issues were struck by the trial Court :
"(1) Whether defendant No. 2 made the cuts and channels as alleged in para No 10 of the plaint illegally and mala fide ?
(2) Whether the plaintiff suffered any loss due to the said cuts and channels, if so, to what amount of damages, if any he is entitled and from whom ?
(3) Whether the plaintiff has no cause of action to bring the suit ?
(4) Relief "
The parties led evidence. On consideration of the entire evidence, the trial Court decided issue No. 1 against the appellant. It was held by the trial Court that the flood waters had invaded villages Sadhanwala, Pakhi Khurd and Bir lands and the surrounding areas with the result that there was grave danger to the lives and properties of these villages and in this situation Mr. Raju, SDO after inspection of the spot and local enquiries removed the bunds protecting the Bir land to provide outlet for the flood water. This act on the part of the SDO was not mala fide and could not be held to be illegal inasmuch as it was motivated to remove danger to lives and properties of the subjects of the State whose protection is the primary duty of the sovereign power. Thus the act being an act of necessity on the part of the SDO did not result into any tortuous liability of the State or himself. The trial Court in view of the finding on issue No. 1 further held that issue No. 2 had lost its importance. Issue No. 3 was not pressed on behalf of the respondents. Consequently, in view of the finding on issue No 1, the suit of the appellant was dismissed with costs.
Feeling aggrieved from the judgment and decree of the trial Court, the appellant preferred Regular First appeal No. 4 of 1969 in this Court the learned Single Judge on consideration of the entire evidence upheld the findings of the trial Court on issue No. 1 and found that the act of making the two cuts was neither illegal nor mala fide and the respondents were not liable to pay any damages to the appellant. The learned Single Judge further observed that we have a welfare State and under the Constitution each one of the citizens is entitled to the State protection. The act of the S. D.O. was only in furtherance of the same because he wanted to save the lives and belongings of the residents of the two villages as against the standing crops or trees belonging to an individual who happens to be a former Raja. Before the Constitution of India the Raja may have had the preference over the subjects, but that is not true after the Constitution. It would, be adding insult to the injury if damages are awarded to the appellant instead of commending the act of the S. D.O. " In view of the aforesaid finding, the learned Single Judge dismissed the appeal but left the parties to bear their own costs.
Still dissatisfied, as earlier observed, the appellant has preferred the present appeal.
Before starting arguments on merits. Mr. K.C. Yuri, learned counsel for the appellant, drew our attention to a Division Bench judgment of this Court in Bawa Singh v. Jagdish Chand and others, A.I.R. 1960 Punjab 573, and the judgment of the Supreme Court in Asha Devi v. Dukhi Sao, A.I.R 1974 S. C. 2048, for the proposition that the power of a Division Bench hearing Letters Patent Appeal under Clause 10 from the judgment of a learned Single Judge in first appeal is not limited only to a question of law under section 100, Code of Civil Procedure, but it has same power which the learned Single Judge has as first appellate Court in respect of both questions of fact and law. The limitations on the power of the Court imposed by sections 100 and 101, Code of Civil Procedure cannot be applicable to an appellate Court hearing the Letters Patent Appeal for the simple reason that the learned Single Judge of the High Court is not a Court subordinate to the High Court. On the basis of the aforesaid enunciation Mr. Puri counsel for the appellant, prayed that we should reappraise the entire evidence and thereafter record a finding on issue No. 1. In view of the aforesaid law enunciated by the Supreme Court, we were taken through the entire evidence on the file.
It was contended by Mr. Puri, learned counsel for the appellant that the floods were created by the State as the drains were left unfinished and the land or the appellant was surrounded by high mounds and the flood water itself could not go there and that it was as a result of the cuts made that the water entered the fields of the appellant and caused heavy damage.
We have heard the learned counsel for the parties and find no merit in the submission of the learned counsel for the appellant there is no dispute that in September, 1962, there was an unexpected flow of water towards villages Sapanwala and Pakhi Khurd causing such a grave situation that there was likelihood of the two villages including their abadis being washed away. It has also come in the evidence that the width of the water was 4/5 miles and this water had come from the side of Ferozepur Faridkot and after destroying village Goniwala was likely to destroy village Sapanwala and Pakhi Khurd. Again there is no contest that village Pakhi Khurd was completely destroyed by the flood water. It has come in the evidence that village Sapanwala was saved as a result of making a cut in between the Bir which lies somewhere in between the two villages and if the cut had not been made in the Bir then it was very likely that the flood water would have gone to village Sapanwala and in all probability, would have also destroyed completely the abadi of that village as well. Mr. Karam Singh Raju, respondent No. 2, who has appeared as D W. 6 has explained the circumstances under which he was compelled to order cut in the bund surrounding the lands of the appellant. According to him, as a result of unprecedented floods in September, 1962 a serious situation had arisen in the tehsil of Faridkot and many villages had been marooned which was further aggravated by the artificial bunds raised by the people at different places. He has further stated that on 29th September 1962 he reached the spot between villages Sadhanwala and Pakhi Khurd and found that the flood water marooning village Goniwala had reached the Bir forming a lake about 3 to 5 miles in width ; that the discharge of water and its natural flow was obstructed by the artificial bund raised by the inhabitants of village Pakhi Khurd ; that the flow of water was obstructed by the State watercourse on the side of village Sadhanwala ; that the tail of the said minor ended in Bir Gogiana and the natural depression there had been plugged by the Bir people ; that in case no arrangements had been made for the discharge of the water, villages Goniwala and Khalchi would have been ruined and their abadi had been affected; that after local investigation and personal inspection, he came the conclusion that since the natural flow of water was towards the Bir, the removal of the obstruction towards the Bir would ease the situation considerably and that the cut was ordered. It would be pertinent to observe that even the plaintiff''s own witnesses, that is, Jangir Singh P.W. 1 and Jasmer Singh P W. 2 have admitted that the flood water had reached the Bir fields from the side or villages Goniwala Khalchi after crossing the railway lines and the roads. It is quite manifest that on account of unprecedented floods there was imminent danger to the life and property of village Pakhiwala, Sadhanwala and other marooned villages and if no action had been taken in time by the S.D.O. there might have been considerable loss of human lives and properties.
Mr Puri, learned counsel for the appellant, sought to argue that there was no law which could permit the making of the cut in order to save the property of a neighbour. In other words, what he sought to emphasise was that the State did not take care of its drains and the situation was created by the State itself and that legally it was not permissible to cause damage to the property of the appellant in order to save the property and lives of two villages. On the face of it, the contention of the learned counsel does not appeal to us nor are we inclined to hold that even if an authority comes to a conclusion that the floods were likely to wash away the villages and cause heavy damage and loss to the property and lives of those villages, then also it has to be a silent spectator and is not entitled to take any action as in the event of taking any action the neighbour is likely to suffer some damage. On the evidence which has come on the record, we find that the view taken by the trial Court and the learned Single Judge is perfectly legal and just and no exception can be taken to that finding.
Mr. Puri, learned counsel for the appellant, had cited a large number of authorities but we do not propose to make reference to those judgments as none of them is applicable to the facts of the case in hand especially in view of our finding that the action of respondent No. 2 in the circumstances of the case was fully justified. The plaintiffappellant has failed to prove by leading any worthwhile convincing evidence that the action or respondent No 2 in making the cut was mala fide. In our view, the appellant''s act in bringing suit for damages against respondent No. 2 is wholly unjustified and has caused unnecessary harassment in the respondents.
For the reasons recorded above, we find no merit in this appeal and consequently dismiss the same with costs. Counsel''s fee Rs. 1,000/.