IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 AS.No. 10 of 1998 ------------------- AGAINST THE ORDER DATED 22/07/1997 IN AS 10 OF 1998 IN OS.129/1995 of SUB COURT, KASARAGOD . ................... APPELLANTS/ DEFENDANTS 3 & 4: --------------------------------------------------- 1 THE EXECUTIVE ENGINEER, P.W.D. (MINOR IRRIGATION ) DIVISION, KASARAGOD, NULLIPPADY, KASARAGOD TALUK AND DISTRICT. 2. . THE STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KASARAGOD, CIVIL STATION, VIDYANAGAR, KASARAGOD. BY GOVERNMENT PLEADER, SRI. P.P.PADMALAYAN RESPONDENTS / PLAINTIFF AND DEFENDANTS 1 & 2 ---------------------------------------------------------------------------- 1. P.NARAYANA RAI, AGED ABOUT 48 YEARS, S/O. PAKEERA RAI, HINDU AGRICULTURIST PADAM BAIL, KALTUKKUKEVILLAGE, P.O. KATTUKUKKE, KASARAGOD 2. THE ENMAKAJE PANCHAYATH REPRESENTED BY ITS PRESIDENT 3. THE EXECUTIVE OFFICER, ENMAKAJE PANCHAYATH BY ADV. SRI.K.G.GOURI SANKAR RAI ADV. SRI.U.P.KUNIKULLAYA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22 /11 /2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MM JUSTICE P.BHAVADASAN --------------------------------- AS No.10 OF 1998 --------------------------------- Dated this the 22nd day of , 2011 J U D G M E N T The defendants 3 and 4 in OS 129 of 1995 of Sub Court, Kasaragod are the appellants. They suffered a decree. The parties and facts are hereinafter referred to adhere arrayed before the trial court. 2. The plaintiff claimed to be the absoulte owner in possession of 35 cents of land comprised in RS.59/2. According to him, on the western side of the thodu situating in R.S 153 part, he would alleged that the ownership of the thodu, and the puromboke land vest with 1st defendant Panchayath . Further allegation was that the Panchayath had put up a dam in the thodu to prevent floodings during the rainy season. He would claim that finding the precarious nature of the dam he brought out to AS NO. 10/1998 2 the notice of the Panchayath on several occassions, but they did nothing in the matter. 3. On 19-7-1994 it is alleged that there was a heavy lash of rain which brought down one of the pillars of the dam and flooded the area . In that process, the rebut put up by the plaintiffs and his areca trees were damaged. He claimed that he has suffered damaged to Rs.79,250/- but for reasons it consigns his claim to Rs. 60,000/- 4. The defendants 1 and 2 resisted the suit by filing the written statement. They contended that Panchayath was not properly represented and that the plaintiff was not in possession of 35 cents of land in R.S 59/2 as claimed by him. The disputed allegations regarding the corrosion of the pillar of the dam and pointed out that the major repairs are done by the Minor irrigation department at the instant of the Panchayath. The Panchayath denied any negligence on their part and they contended that the flooding that AS NO. 10/1998 3 occurred on 19-7- 1994 was a result of a natural calamity and therefore the plaintiff is not entitled to any damages. They also pointed out that no notice as contemplated in the Panchayath Raj Act was issued by the plaintiff and also that going by the provisions of Panchayath Raj Act, the suit is barred by limitation. 5. The defendants 3 and 4 filed a separate written statement stating that the dam was constructed about 25 years ago and the maintenance was the duty of the Panchayath. The defendants 3 and 4 came to know about the mishap only when they received Exts. A1,A3 notices. On inspection, they found that one of the pillars of dam had given way and a huge flooding would have occurred on 17-9-1992. They however denied any liability for the said mishap and pointed out that they were unnecessary part with this suit. They, therefore prayed for the dismissal of the suit. AS NO. 10/1998 4 6.On the above pleadings, issues were raised. The evidence consists of the testimony of PW1 and documents marked as Exts. A1 to A4 from the side of the plaintiff . Defendants had DW1 examined Exts. C1 and C2 are the commissioner's report and plan . The trial court after an evaluation of the evidence found that as contented by the Panchayath there was no proper notice and also that urged out that the suit was barred by limitation. There after quite strangely the trial court mulcted defendants 3 and 4 with liability holding that they are responsible for the maintenance of the dam . The suit was accordingly decreed as against him. It is the said judgment and decree that is assailed in this appeal. 7. The question that arises for consideration is whether the trial court was justified in holding that the defendants 3 and 4 liable for the amount of damages set to have been suffered by the plaintiff. AS NO. 10/1998 5 8. The learned Government Pleader drew attention of this court to the pleadings in the case and pointed that no one in plaint it is alleged that the dam vest with the defendants 3 and 4 or that they are responsible for its maintenance and upkeep . The pleadings are all to the effect that the maintenance and repair of the dam was the duty of the Panchayath as the dam is vested with the Panchayath. Further allegation was that inspite of the repeated alleged notices given to the Panchayath, they did nothing in the matter and that ultimately resulted in the mishap. The learned Government Pleader took this court through the entire evidence and pointed out that even at the time of examination PW1 , the plaintiff had no case that defendants 3 and 4 were in any way responsible for the mishap. DW1 examined on behalf of the Panchayath admitted that the dam vested with the Panchayath and they are responsible for its maintenance . Under these AS NO. 10/1998 6 circumstances the lower court had heard both on facts and in law in mulcted the defendants 3 and 4 with liability. 9. The learned counsel appearing for the respondents on the other hand pointed out that as far as the plaintiff is concerned he may not be in the law as to who is responsible for the maintenance and up keep of the dam which is an exclusive knowledge of the defendants and if it is found that ultimately defendants 3 and 4 are responsible for the maintenance .There is no need for the--- should not be made liable. Drawing attention of A3 the defendants counsel pointed out that it is virtually admitted that the flooding had occurred as alleged in the plaint and in that process that the the plaintiff had suffered damages. It was under these circumstances that the decree happened in part against defendants 3 and 4. The learned counsel would point out that no grounds are made out to interfere the judgment and decree in the trial court. AS NO. 10/1998 7 10. The plaintiff claimed to be the absolute owner in possession of 35 cents of land in R.S. 59/2. It is noted in dispute that the thodu runs by the side of his property and there is a dam put up across the thodu. It is also noted in the dispute that on 19-7-1994 due to heavy rain the dam collapsed and there was floodings. Going by Ext. A3 would appear that the plaintiffs suffered damages. The question is as who is responsible for the damages suffered by the plaintiffs. 11. If one goes through the plain allegations, the entire allegations are directed against defendants 1 and 2 ,who according to the plaintiffs are responsible for the maintenance and up keep of the dam and it was due to their negligence that the unfortunate incident had occurred. No where in the plaint it is stated that the defendants 3 and 4 had any responsibility for the unfortunate incident. Again when adjourned at PW1, the plaintiff would maintain the AS NO. 10/1998 8 stand that the dam was vested with the Panchayath and it was the duty of the Panchayath to maintain and to attend the periodical repairs to the dam. In cross-examination deposed that he happened to implead defendants 3and 4 only because of that that they have put up dam. Nowhere in his evidence does he say that the defendants 3 and 4 had any obligation to maintain the dam or to attend the periodical repairs towards the dam. 12. It is seemed to notice that DW1 examined on behalf of panchayath also admits that the dam on the side are vested in the Panchayath. And that the Panchayath had the obligation to attend to the maintenance and repair works of the dam. Of course he would say that on the request of Panchayath, the 3rd defendants attends to the work. The stand of DW1 is that the flooding was not due to any latches on the part of Panchayath , but it was an unexpected natural calamity. DW1 examined on behalf of AS NO. 10/1998 9 the Panchayath has no case that the dam remained under the irrigation department or that Panchayath had nothing do with the maintenance of the dam. 13. The court below found that for two reasons the defendants 1 and 2 cannot made liable for the damages suffered by the plaintiff. The reasons given are one that there is no proper notice as contemplated under the Panchayath Raj Act. The second ground taken by the court below was that going by section 249(1) (b) of the Panchayath Raj Act is the suit against the Panchayath as to be brought within six months of notice. The plaint filed in this case was admittedly beyond that --- and therefore the suit is bared by limitation. Accordingly relief was declined as against defendants 1 and 2. 14. One contention raised by the Government pleader to notice that this point of time . It was pointed out by the learned Government Pleader that the Panchayath in AS NO. 10/1998 10 its written statement specifically denied the right of the plaintiff in the suit property. But still the plaintiffs did not care to produce the documents of title or to show that he had any ownership or possession by virtue of any documents over there the property in which damages were caused. 15. Though there may be some substance in the contention taken by the learned Government Pleader it is unnecessary to point out especially in this case. Ext. A3 infact discloses that the property in respect of which damages were caused was in the ----- of the plaintiffs. It is much dispute in that regard . I regarded the title had need not be in the suit. 16. There was no justification for the trial court to come to the conclusion that defendants 3 and 4 were liable for the damages suffered by the plaintiffs especially when there was no allegation in the plaint against them . AS NO. 10/1998 11 Moreover there was any evidence adduced the plaintiffs as against them. In fact that there is no evidence to say that it was the Panchayath who was responsible for the calamity and that he seeks damages from the Panchayath. He has no---- to state that he happened to implead D3 and D4 ----without that put up the dam. 17. In the light of the pleadings and the evidence adduced by the plaintiff that there was no occasion for 3 and 4 defendants even imagine that they would be multed with liability. There were no allegation against them and not the plaintiffs adduce any evidence against them to show that they are in any way liable for the damages suffered to the plaintiffs. The learned government pleader is fully justified in stating that the P3 and P4 were taken adjourned by the decree. 18. Going by the pleadings and evidence in the case it is clear that the plaintiffs sort remedy and reliefs only AS NO. 10/1998 12 against the defendants 1and 2. When it was found that the suit as against Panchayath is not maintainable without any justification, 3 and 4 defendants are made liable. Over looking the fact that they were not called upon to meet such a case . For these reasons this court is unable to uphold the decree of the trial court mulcted defendants 3 and 4 with liability. This appeal is allowed. Impugned judgment and decree are set aside and suit will stand dismissed as decree and default and no order has passed. P.BHAVADASAN JUDGE MM AS NO. 10/1998 13 AS NO. 10/1998 14