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1996 Supreme(All) 1463
HIGH COURT OF ALLAHABAD
S.P. Srivastava, J.
Baij Nath Prasad - Appellants
Versus
Bhagwati Din - Respondents
Second Civil Appeal No. 401 of 1980
Decided on : Dec 20, 1996
Bireshwar Nath, S.P.Shukla, R.P.Shukla
Obstruction to a water channel is a continuing wrong, and the cause of action is renewed de-die-in-diem so long as the obstruction continues.
Headnote:
LIMITATION ACT - ARTICLE 85 - SECTION 23 - CONTINUING WRONG - OBSTRUCTION TO WATER CHANNEL - CAUSE OF ACTION RENEWED DE-DIE-IN-DIEM - SUIT WITHIN TIME IF BROUGHT WITHIN THREE YEARS OF LAST DATE OF WRONG.
Fact of the Case:
Plaintiff filed a suit for damages caused by the defendants' demolition of a nali (water channel) used for irrigating his agricultural holdings. The trial court decreed the suit in part, assessing damages at Rs. 5,500. The defendants appealed, and the first appellate court dismissed the appeal. The defendants then filed a second appeal, arguing that the suit was barred by limitation under Article 85 of the Limitation Act, 1963.
Finding of the Court:
The court held that the obstruction to the water channel was a continuing wrong, and that the cause of action was renewed de-die-in-diem so long as the obstruction continued. Therefore, the suit was within time if it was brought within three years of the last date to which the wrong continued. In the present case, the water channel had been restored on 9.4.1979, and the suit had been filed on 30.4.1979, which was within three years of the last date of the wrong.
Issues: Whether the suit was barred by limitation under Article 85 of the Limitation Act, 1963.
Ratio Decidendi: The court relied on Section 23 of the Limitation Act, 1963, which provides that in the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results. The court also relied on the decision of the Privy Council in Rajroop Koer v. Abdul Hussain, ILR 6 Cal 394, which held that the obstruction to a water course is a continuing wrong, and that the cause of action is renewed de-die-in-diem so long as the obstruction continues.
Final Decision: The court dismissed the second appeal with costs.
S.P. Srivastava
1. THIS is a defendants second appeal arising out of a suit for recovery of damages along with an interest at the rate of 6% per annum pendente lite and future.
2. THE trial court had decreed the suit in part assessing the extent of damages to be only Rs. 5,500 as against Rs. 11,000 as claimed. THE defendants felt aggrieved by the same, preferred an appeal which was dismissed, hence, the present second appeal.
I have heard the learned counsel for the parties and have carefully perused the record.
3. THE facts in brief, shorn of details, lie in a narrow compass. Prior to the filing of the suit giving rise to the present appeal, the plaintiff had filed a suit being suit No. 1 of 1976 seeking a decree of permanent prohibitory injunction restraining the defendants from demolishing or damaging the nali detailed in the map attached with the plaint which was used for irrigating the agricultural holdings of the plaintiff, further requiring the defendants not to interfere in the plaintiffs use of nali in dispute for the purpose of irrigating his agricultural holdings.
4. DURING the pendency of the aforesaid suit, the defendants has demolished a large part of the nali in suit. The plaintiff in the circumstances got his plaint amended and claimed a further relief claiming a decree of mandatory injunction requiring the defendants to restore the nali in question to its original condition and in case they failed to do so prayed that the same be allowed to be restored by the plaintiff through court.
The aforesaid suit had been filed asserting that the plaintiff had acquired a prescriptive right of assessment. In regard to the user of the nali for the purpose of irrigating his agricultural holdings taking water from the two tanks apart from his own well. A part of the nali in dispute passed through the land belonging to the defendants. The suit referred to above who dismissed by the trial court but an on appeal by the plaintiff reversing the decree of the trial court, his suit was decreed by the first appellate court. The appellate decree was for a mandatory injunction directing the defendants to restore the nali in suit within three months and further restraining them permanently from interfering with the right of the plaintiff to irrigating his fields through the nali in suit from his tube well installed in chak No. 621 and from the tank in plot Nos. 602 and 610 as shown in the map attached with the plaint. The decree further provided that if the defendants failed to restore the nali within three months from the date of the decree, the plaintiff would be entitled to get it restored at the cost of the defendants.
5. THE appellate court, while granting the decree in terms as indicated hereinabove, had recorded a clear cut finding that it was established that the plaintiff was irrigating his fields through the nali in suit for the last more than 20 years peacably, without interruption, and as of right. THE appellate court had observed that it had come in evidence that the plots were irrigated only with the water of the tank but it did not mean that the user was not continuous relying upon various decision of various High Courts. THE appellate court had come to the conclusion that the user of the nali could not be said to be of a temporary nature and the right to take water through the nali could be acquired by prescription. THE appellate court found it proved and established from the evidence on record that the plaintiff had acquired right of easement in respect of the nali in suit to irrigate his fields.
6. THE decree passed by the first appellate court was sought to be challenged by the defendants in Second appeal before this Court but without any success as the second appeal was dismissed in limine on 1.8.1979 observing that the findings recorded by the first appellate court did not require any interference.
The suit giving rise to the appeal was filed on 30.4.1979. The plaintiff in this suit had asserted that the d
