Decided on January 19,1973

JURA SAHU Respondents


- (1.) THE unsuccessful plaintiff in both the courts below has preferred this second appeal against the decision passed by the Additional Subordinate Judge, berhampur in Title Appeal No. 14 of 1969.
(2.) THE plaintiff's case, in brief, is that he owns and possesses plot Nos. 775 and 774 as specifically described in the plaint. To the adjacent north of the said two plots, the defendants have their plot No. 690 at a lower level than the above mentioned two suit plots. The surplus water from plot No. 690 was being discharged from time immemorial through plot Nos. 742, 745 and other plots downwards belonging to other persons. The defendants being in inimical terms with the plaintiff and in order to damage the plaintiff's land and to have a shortcut way for the surplus water on plot No. 690, forcibly dug a Nala on the above-mentioned two suits plots thus causing wrongful loss and damage to the plaintiff. The plaintiff tried to obstruct the above high-handed action of the defendants, but failed in his attempt as the defendants are influential persons and had the support of the police and other local authorities.
(3.) DEFENDANT Nos. 4 and 5 did not contest the suit and were set ex parte. The plea of defendant Nos. 1 to 3 is that they have customary and easementary right of taking water through the above-mentioned suit plots. According to them plot No. 690 stands at a higher level than its adjacent plot No. 775 belonging to the plaintiff, and since time immemorial the surplus water from plot No. 690 used to naturally flow out through plot No. 775, and thereafter through other plots in the locality. It is averred that the plaintiff being a rich man wanted to purchase the said plot No. 690, but as he failed in his attempt, he recently raised the level of a portion of plot No. 775 adjacent to plot No. 690 by putting earth on the same, thereby causing obstruction to the natural flow of the surplus water from plot No. 690 through plot No. 775, with the ulterior motive of damaging the defendant's aforesaid plot No. 690 and making it unfit for cultivation. Soon after raising the level of plot No. 775 as aforesaid, the plaintiff instituted this suit to harass the defendants. They have specifically asserted that unless the aforesaid portion of plot No. 775 recently raised by the plaintiff is not suitably removed in order to allow the surplus water from plot No. 690 to flow out through plot No. 775 as before, plot No. 690 would become unfit and useless for all intents and purposes.;

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