- (1.) THIS is plaintiffs second appeal arising out of a suit for a mandatory injunction to direct the defendants to fill up a pit dug by the defendants on their land shown by Letters ABCD in the plaint map and for recovery of Rs. 200/- as damages caused to the plaintiffs' house by reason of this pit. According to the plaintiffs the pit had been dug near the northern wall of these house. During the rainy season the pit got filled up with rain water and it percolated towards the plaintiffs' house damaging this wall. The defendants denied that any dama ge was caused to the plaintiffs by any act of the defendants. The trial court believed the plaintiffs' evidence and held that the pit had been dug by the defendants and that rain Water had percolated towards the plaintiffs house and damaged their wall and that the plaintiffs had suffered damages to the extent of Rs. 200/-. On these findings the trial court decreed the suit both for injunction and damages. The defendants' went up in appeal. The appeal was allowed by the lower appel late court.
(2.) FOUR points were raised in the court below. The first was that the plaintiffs had no right to maintain the suit even if the allegations were correct. This was negativ ed by the court below. The second point was that the defendants had not dug the pit. This too was not accepted as correct. The third point was that no damage had been caused to the wall of the plaintiffs' house on account of the digging of the pit. This point was decided in favour of the defendants. The fourth point was that the plaintiffs had not proved the quantum of damages. The appel late court did not give any finding on this point, but held that the defendants did not cross-examine the plaintiffs' witnesses on this point. On these findings the appellate court allowed the appeal and dismissed the plain tiffs' suit The lower appellate court has re corded the finding on the basis of evidence produced by the parties that the earth in the north of the plaintiffs wall was soft. It re corded a further finding that the northern wall of the plaintiffs had developed cracks due to water percolating through the pit. Still, it refused to grant the relief because a space of one and a half feet had been left between the wall of the plaintiffs' house and the pit It held that because of leaving this space, the plaintiffs should be deemed to have taken sufficient care and the damage to the wall could not be deemed to have been caused by the digging of the pit. This inference is un warranted and is contrary to the evidence on record. From the facts found by the court below as mentioned above, the only inference possible is that the damage caused to the plaintiffs' wall was the direct result of the defendants' act. Once the court below be lieved the plaintiffs' evidence that the dama ge had been caused to the plaintiffs wall by the accumulated water percolating through the pit dug by the defendants on his land, ft committed an error of law in not arwarding damages, simply because the pit was one and a half feet away from the wall. It was held in the case of Mahadeo Prasad v. Sarju Prasad, 1932 All LJ 758 = (AIR 1932 All 573): "Where a neighbour digs a trench in the rainy season near the foundation of the kutcha house owned by the plaintiff and rain water accumulates in the trench, with the re sult that the (foundation of the plaintiff's) kutcha wall collapses, the plaintiff is entitled to recover damages from the defendant ...... ...... The use of the land by the defendant was not ordinary. He might have dug the trench but it was his duty to prevent the rain water from accumulating in the trench. His failure to do so was negligence for which he must be held responsible." The question whether or not the leaving of a particular space between the pit and the neighbours' wall is reasonable precaution will depend on the circumstances of each case and cannot be decided in the abstract as the learned Civil Judge has done. The reason ableness of precaution or care has to be judged by the consequences that follow. Learned Civil Judge committed the error in assuming that the distance was reasonable without considering the evidence regarding the consequences that came into being on ac count of the accumulation and percolation of water through the pit. The result that fol lowed the accumulation of water showed that the defendants had not taken reasonable care to prevent the injury. They are, therefore, liable to pay damages to the plaintiffs.
(3.) ALTHOUGH the lower appellate court has not recorded any finding about the quan tum of damages, it has found that the defen dants did not cross-examine the plaintiffs' wit nesses on this point Hence, the finding re corded by the trial court on the basis of the plaintiffs' evidence, regarding the quantum of damages must be accepted as correct. Ac cording to the lower appellate court, the de fendants have already covered the pit, hence the relief for injunction has become infruc-tuous.;