IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 AS.No. 828 of 1998() -------------------- OS.43/1996 of SUB COURT, KASARAGOD .................... APPELLANTS/DEFENDANTS ---------------------------------------- 1. STATE OF KERALA REP BY THE COLLECTOR OF KASARAGOD DISTRICT 2. THE ASST. ENGINEER, MINOR IRRIGATION MANJESHWAR, HOSBETTU VILLAGE KASARAGOD BY GOVERNMENT PLEADER MR.P K RAVIKRISHNAN RESPONDENT/PLAINTIFF ----------------------------------- LIYAM D'SOUZA, CHRISTIAN AGRICULTURIST RESIDING IN URMIJAL OF KAYYAR VILLAGE KASARAGOD TALUK, P O KAYYAR (VIA) UPPALA KASARAGOD DISTRICT ADV. SRI.K.G.GOURI SANKAR RAI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26.09.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.828 of 1998 ------------------------------------- Dated this the 26th day of September 2011 Judgment Aggrieved by the judgment and decree dated 25.03.1998 in OS No.43/96 before the Sub Court, Kasaragod, the defendants in the suit have come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claimed to be the owner of extensive properties comprised in different survey numbers, consisting of arecanut garden and paddy fields. He has narrated in the plaint, the income he used to derive from the various properties. According to him, the properties were being irrigated using water from the water tank situated in RS No.56/11 of Kubanur village. From the tank, water is led to different fields through a water channel. According to the plaintiff, there is no AS 828/98 2 other source of water for him to irrigate his properties. The complaint is that in 1985, the defendant blocked the water channel by dumping mud in the channel and that created scarcity of water making irrigation and cultivation impossible. The plaintiff therefore, laid OS No.90/86 seeking mandatory injunction against the defendants. The said suit was decreed in favour of the plaintiff. Execution was levied and the water channel was cleared. The plaintiff would point out that from 1985 till 6.10.1995, due to the hindrance caused by the dumping of mud in the channel, he could not irrigate the land and he has suffered loss. He estimates his loss to Rs.50,000/- and sought to recover the same from the defendants. 3. The defendants resisted the suit. They denied the allegation in the plaint and also denied that the channel relied on by the plaintiff was the only source AS 828/98 3 of water for cultivation of his properties. They also disputed that even assuming that the act complained of by the plaintiff was true, nothing prevented him from irrigating the properties using other source of water. According to the defendants, the water from the tank, over which the plaintiff lays claims, has only seasonal collection of water. It is also pointed out that the present claim of the plaintiff is barred by res judicata and estoppel. Pointing out that the plaintiff is not entitled to any reliefs, they prayed for dismissal of the suit. 4. On the above pleadings, issues were raised. Evidence consists of the testimony of PWs 1 and 2 and Exts.A1 to A15 from the side of the plaintiff. The defendants had Exts.B1 and B2 marked. The court below found that the claim made by the defendant that the present suit is barred by res judicata, cannot be countenanced. Thereafter, even after finding that there AS 828/98 4 is no evidence to show the actual income derived by the plaintiff from the properties, based on the commissioner's report obtained in the earlier suit – OS 90/86, the court below assessed the amount of damages due to the plaintiff as Rs.16,703/-. It is the said decree that is assailed in this appeal. 5. The only question that arises for consideration in this appeal is whether the award of damages by the court below is justified or not. 6. The learned Government Pleader appearing for the State contended that the court below had fallen into an error in decreeing the suit in favour of the plaintiff. There is absolutely no evidence at all regarding the income derived by the plaintiff from the paddy fields and there is also nothing to show that the water channel complained of was the sole source of water to irrigate his lands. The learned Government AS 828/98 5 Pleader also drew attention of this court to the fact that the price of paddy relied on by the lower court is the price available in Neyyattinkara Taluk whereas the property in question is in Kasaragod district. There was no data available at all before the court below to compute the damages claimed by the plaintiff and the court below ought to have disallowed the claim of the plaintiff for damages. 7. The learned counsel for the respondent, on the other hand, pointed out that the court below has made a fair estimate of the income, had the property been cultivated, on the basis of the commissioner's report filed in the earlier suit. He pointed out that the water through the channel complained of was the only source of water and when water was not available, it follows that he could not have cultivated the properties. Even though the plaintiff claimed that he used to raise AS 828/98 6 two crops, for the purpose of computing the damages, the court below has taken only one crop and has computed the value thereof. According to the learned counsel for the respondent, the lower court has adopted a reasonable mode of assessment of damages and no grounds are made out warranting interference with the award of damages. 8. The issue regarding the right of the plaintiff to take water from the tank and have it flowing through the channel leading to his property cannot be agitated by the defendants in the suit for the simple reason that the said controversy has already been concluded by the judgment and decree in OS No.90/86 between the parties. The issue involved in that suit was the right of the present plaintiff to utilise the water running through the channel lying along the boundary of his property uninterrupted by the acts of the defendants. But even AS 828/98 7 though the defendants contended that the plaintiff did not have any unqualified right to have water from the channel, that was found against and it was found that the plaintiff has acquired prescriptive right of easement to use the water running through the channel for the purpose of irrigating his properties. That judgment and decree has become final. Therefore, the right of the plaintiff to have water from the tank involved in the proceedings running through the channel cannot be re- agitated. 9. The question then arises as to whether the assessment of damages made by the court below is legal. Even going by the finding of the lower court, there is absolutely no evidence regarding the income derived by the plaintiff from the paddy fields said to have been irrigated by him prior to the hindrance caused, due to which he could not cultivate. The solitary evidence AS 828/98 8 produced is Ext.A8, which is the levy notice of the year 1973. Even according to the plaintiff, hindrance was caused to the flowing of water only in 1985. Even though the plaintiff claimed that he used to raise two crops, he has not produced any evidence to substantiate his claim. Ext.A9 commissioner's report in the earlier suit would reveal that the plaintiff did have alternate source of water to irrigate his properties. While giving evidence as PW1, the plaintiff's case was that water from other source is not sufficient to meet the requirement of cultivation in his property. Therefore, the situation was not one where he could not have cultivated the properties at all. 10. If as a matter of fact, the plaintiff had been cultivating two crops, there would have been some evidence to show the said fact. PW2, who was examined on behalf of the plaintiff says that the plaintiff AS 828/98 9 had kept the fields idle for 8 years. He only says about the use of water by the plaintiff from the tank and channel in question. Even though he claims that there is no other source of water for irrigating his properties, as already noticed, that is belied by Ext.A9. 11. The court below has relied on the commissioner's report produced in the earlier suit OS No.90/86. As rightly pointed out by the learned Government Pleader, the price of paddy taken for the purpose of computation of damages is that of Neyyattinkara Taluk while the property is situated in Kasaragod district. There is also absolutely no evidence to show that the plaintiff was totally prevented from cultivating his land due to scarcity of water due to the dumping of mud in the channel in question. 12. The result is that there is absolutely no evidence regarding the income derived by the plaintiff AS 828/98 10 and the loss sustained by him due to the act of the defendants. The mode adopted by the court below for computation of damages cannot be justified. One has to remember that the claim is for damages where strict proof is necessary. None of the data adopted by the court below to compute the damages is acceptable in law. It follows that the plaintiff has miserably failed to establish his claim for damages. The court below ought not to have granted a decree to the plaintiff making the defendants liable for damages . The judgment and decree passed by the court below are clearly unsustainable in law. They are liable to be set aside. Accordingly, this appeal is allowed. The judgment and decree of the court below are set aside and the suit shall stand dismissed. No order as to costs. P.Bhavadasan, Judge sta AS 828/98 11 AS 828/98 12