The principle of foreseeability of consequences is the effective test of liability for negligence.

S. BARMAN, J.

( 1 ) THE applicability of the principle of foreseeability of consequence, as the effective test of liability for an alleged act of negligence, is the main point involved in this Second appeal by the defendant, after his death -- as the appellant from a reversing decision of the learned Additional Subordinate Judge, Baiasore, whereby he set aside in part the findings of the learned Munsif, Balasore, and decreed the plaintitfs' suit in their favour in terms of his judgment, in the circumstances hereinafter stated.

( 2 ) THE plaintiffs' case, shortly stated, was thus: The plaintiffs are owners of plots nos, 508, 508 and 509 of mouza Nischantpur in the district of Baiasore. The plaintiffs' said plots are adjacent to the defendant's plot No. 507 as shown in the map which is a part of the records. On June 17, 1956, in the midst of the monsoon of the year, the defendant dug a tank on the south of his plot No. 507 without any embankment, and put the earth, on the sides which is alleged to have spread over the plaintiffs' adjoining plots on account of heavy rains, and hereby caused damages to the plaintiffs paddy drop as alleged. On July 18, 1956 the plaintiffs filed the suit for declaration of title, confirmation of possession; in the alternative for recovery of possession, permanent injunction and damages. The defence taken in the suit, was that there was no encroachment; that the defendant dug the tank for his own convenience; that the alleged spreading of earth, if any, was a vis major (act of God) for which the defendant is not liable.

( 3 ) THE trial court held that there was no encroachment and the plaintiffs were not entitled to the declaration prayed for; on the question of damages he found that there was damages caused by reason of the excavation of the tank which he assessed at Rs. 100/ -. The trial court, however did not allow the plaintiff any damages because, -- as he found, --the defendant was not liable and in the result, the trial Court dismissed the suit, in appeal, the learned lower appellate court held that there was encroachment, on the basis of the measurement of the civil Court Commissioner (Exts. 4 and 5); that there was spreading of earth by reason of the digging of the lank and ultimately there was damage which the plffs. suffered; the learned lower appellate Court passed a decree in favour of the plaintiffs for a sum of Rs. 100/- as damages, and also made an order directing the defdt. to put a protective embankment and remove the earth which had already spread, and further granted an injunction restraining the defendant from excavating any tank on his (defendant's) land. Hence this Second appeal.

( 4 ) AT the outset, it was conceded, on behalf of the plaintiff-respondents, appearing herein, that, in any event, the judgment of the learned lower appellate Court should be modified to the extent that the portion of his judgment.--whereby he made a direction for protective embankment to be put on four sides and permanent injunction restraining the defendant from excavating any tank or raising any Bundh on his plot No. 507,-- cannot stand.

( 5 ) THE main points, for consideration, in this appeal are : firstly, the question of liability of the defendant by reason of his digging of the tank on his land, secondly, if the defendant is so liable, what is the extent of the alleged encroachment, by reason of which the plaintiffs suffered the alleged damages.

( 6 ) ON the question of liability, the settled legal position, -- in the light of which this case, on facts, is to be decided, -- is that where an owner of land, without wilfulness or negligence, uses his land in the ordinary manner, though mischief thereby accrues to his neighbour, he is not liable for damages, but, if with a view to use the land in an unusual manner, he brings upon his land water which would not naturally have come upon it, he will be liable for damages for the escape of the water into the land of his neighbour; where a defenda