Ram Kumar vs Bhim Singh

J.V.Gupta, J.

This is plaintiffs'' second appeal whose suit was decreed for a sum of Rs. 2,164.50 by the trial court, but the said decree was modified in appeal and the decretal amount was reduced to Rs. 800/ only.

Ram Kumar and Fateh Singh (now deceased) filed the present suit for the recovery of Rs. 4,000/ on account of the damages on the allegations that there had been a water channel through the fields of the defendants. From the outlet No. 25800 in Sanjharwas Minor, canal water has been flowing for irrigation purposes. It had been eventually coming to the fields of Fateh Singh, Plaintiff, through that minor, for irrigation purposes. Their area is 46 kanals 16 marlas. During rabi 1969 Bhim Singh and Sukh Lal, closed down the water channel and stopped the flow of canal water into those fields. This resulted in the ruination of the crops standing in those fields and thus, the plaintiffs suffered the loss to the extent of Rs. 4,000/. According to the plaintiffs, the water channel was a sanctioned one. The defendants resisted the claim inter alia on the ground that the plaintiffs in collusion with the canal authorities managed the water channel through the defendants'' fields in an illegal manner. It was further pleaded that the defendants were fully justified in closing down the water channel as it was passing through their fields and the plaintiffs had no right to take the chanel through their fields. It was also denied that the plaintiffs suffered any loss on that account. However, the trial court found that the plaintiffs suffered loss to the extent of Rs. 2,164.50 only and consequently, decreed the plaintiffs'' suit to that extent. Dissatisfied with the same, both the parties filed two separate appeals. The learned District Judge accepted the appeal filed on behalf of the defendants and modified the decree of the trial court to the extent of Rs. 800/ only. He dismissed the appeal filed on behalf of the plaintiffs. Aggrieved against the same, they have come up in second appeal to this court.

The defendants also filed Regular Second Appeal No. 644 of 1976 against the judgment and decree of the lower appellate court, but same was dismissed in limine on May 11, 1976. The appeal filed on behalf of the plaintiffs in this Court, was admitted on May 14, 1976. When the defendants came to know that the appeal filed on behalf of the plaintiffs had been admitted, they moved a review application in this court. The order dated September 10, 1976, passed on the said review application reads :

"Sh. V.M. Jain, Delay condoned subject to just exceptions. No ground to review. Requests that this may be treated as a crossobjection as the appeal of the other party has been admitted. This prayer is allowed".

The learned counsel for the appellants contended that once the appeal was dismissed in limine, the defendants were not entitled to file any cross objections as the dismissal of their appeal by this Court operated as res judicata.. In support of this contention, the learned counsel relied upon Prabhu Dayal v. Murli Dhar, A.I.R 1924 Allahabad 867, and Sourindra Nath Basu v. Nirmal Chandra Banerjee, A.I.R. 1928 Calcutta 882. On the other hand, the learned counsel for the defendantsrespondents contended that the cross objections were admitted by this court vide order dated September 10, 1976, as reproduced above, and that the defendants were entitled to file any crossobjections and, therefore, the plaintiffs appellants cannot be allowed to agitate the same that there were valid crossobjections filed. According to the learned counsel in case the cross objections were not entertained, it may be that the review application might have been allowed and the plaintiffs'' appeal had been admitted by that time.

After hearing the learned counsel for the parties, I am of the considered opinion that in view of the order of this court dated September 10, 1976, re produced above, it could not be agitated on behalf of the appellants that there were not validly filed crossobjections. Since the appeal was allowed to be treated as crossobjections because the plaintiff's appeal had been admitted, the same will be treated as validly filed crossobjections. Thus, the preliminary objection raised on behalf of the appellants has no merit.

Coming to the merits of the appeal, it is the common case of the parties that the water channel which was demolished by the defendants was neither the one sanctioned by law, nor the one sanctioned by agreement between the parties, nor the plaintiffs had acquired any right thereto by way of easement and, thus, to all intents and purposes, it was an unauthorised one. Admittedly, the same was running through the fields belonging to defendants. Under the circumstances, if the defendants demolished the same, it could not be sucessfully argued the the defendants had committed any wrong as to entitle the plaintiffs to claim damages. As a matter of fact, the lower appellate Court wrongly relied upon the judgment of this Court in Kundan Lal v. The Superintending Canal Officer, 1971 Current Law Journal 505, which has subsequently overruled by this Court in Jagar Singh v. Superintending Canal Officer, 1972 Punjab Law Journal 147. In view of the decision of this Court in Jagar Singh's case (supra), it could not be successfully argued that the plaintiffs were entitled to any damages because admittedly the water course was not a sanctioned one.

In this view of the matter, the question of assessing the quantum of damages payable to the plaintiffs becomes irrelevant.

No other point has been raised, nor arises in this appeal.

Consequently, this appeal fails and is dismissed. The crossobjections filed on behalf of the defendants succeed and are allowed. The plaintiffs'' suit is dismissed with no order as to costs.