J.M.SHETH - (1.)This appeal is directed against the judgment and decree passed by the learned Joint Civil Judge Senior Division Baroda dated 3rd July 1965 in Special Suit No. 35 of 1964 filed by the respondent against the appellant-State (original defendant No. 1) and defendant No. 2 Superintending Engineer Irrigation Department Baroda. The aforesaid suit was filed by the respondent for recovery of damages to the tune of Rs. 15 0 with six per cent interest and for a permanent injunction restraining the original defendant from flowing any water in the canal so as to damage the well of the respondent.
(2.)The material facts shortly stated are as under : There are survey Nos. 353 354 351 430 435 and 462 in village Vasna Taluka Sankheda District Baroda owned by Joint undivided Hindu Family of the respondent and his son. Respondent is its Manager. Out of these survey numbers in survey No. 353 there is respondents well and water pump is installed in the well. There is also a flour mill run with the help of that pump. They are there from a long time. Heran Canal work was started in year 1956-57 and certain lands out of survey Nos. 353 354 and 362 were acquired. When the digging operations of the canal were going on respondent apprehended damage being done to his well on the opening of the canal. He thereupon filed Suit No. 676 of 1956. That suit came to be ultimately withdrawn on the assurance given on behalf of the State by the Engineer of the State Mr. Joshi.
(3.)After the opening of the canal during the relevant year the respondent found that the canal water seeped (percolated) into his well and collected in it and the pump got immersed under that water and the pump could not be consequently worked and as a result of it plantation crops in the aforesaid fields could not be watered and they withered away. He was supplying water through the pipe-lines in the adjoining lands also. Immediately he had informed the authorities concerned on 11th February 1964 about the aforesaid damage but they paid no heed. He had even sent a telegram. All his requests were not listened to. About 11 350 plants of Bananas dried up as he could not work his pump on account of the aforesaid wrongful act of the State and he suffered a loss of Rs. 15, 000.00 In spite of the authorities being called upon to stop water percolating in the well no steps whatsoever were taken. He had therefore to give notice and had to file the present suit. According to his estimate he would have got a yield of about 1 1/2 maunds of Bananas per each plant. The rate was Rs. 3.00 per maund and deducting Rs. 10,000.00 as expenses he would have earned Rs. 24, 000.00 as profits. But he had restricted his claim to the sum of Rs. 15,000.00
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