- (1.) Col. Sir Harinder Singh Brar, former ruler of the former Faridkot State, filed this appeal under Clause 10 of the Letters Patent against the judgment and decree of the learned Single Judge of this Court dated December 23, 1981, by which his appeal (R.F.A. No. 4 of 1969) was dismissed. The detailed facts are given in the judgment of the learned Single Judge, yet in order to appreciate the controversy, certain salient features of the case may be noticed.
(2.) The appellant is the owner and in possession of revenue estate of Bir Ghugiana, tehsil Faridkot, district Bhatinda, bearing Khasra Nos. 1 to 246 measuring 37,662 Kanals 17 marlas. It is alleged in the plaint that the land in dispute has all around it as its boundary, high sand mounds overgrown with weeds and bushes of spontaneous growth ; that in September, 1962 flood water came to the area in between villages Sadhanwala and Pakhi Khurd, which are situated towards North and East respectively of Bir Ghugiana ; that the natural slope of the lands is towards the area of village Sadhanwala and left to itself the water would have flown through the area of village Sadhanwala and not entered the lands of the plaintiff situate in Bir Ghugiana ; that the flood water was temporarily obstructed by the Sapanwala minor which was partly abandoned from the portion of its tail to the boundary of Bir Ghugiana ; that the villagers of village Sadhanwala had constructed bund to protect their abadi flanking the left bank of Sapannwala minor ; that the villagers of village Pakni Khurd had also constructed a bund on the left side to a protect their village abadi ; that due to these obstructions is of the natural flow of water, flood water accummulated there and would in all probabilities had crossed over to the fields of Sadhanwala in its natural course ; that the villagers of village Sadhanwala approached Shri Karam Singh defendant No. 2 the then Sub Divisional Officer (Civil) Faridkot and requested him to cut the natural mounded boundary of Bir Ghugiana at a point near where the Sapanwala minor touched it ; that the plaintiff dissuaded defendant No 2 from making the cut; that on 29th September, 1962, defendant No. 2 with the help of police made two cuts in the outer boundary of Bir Ghugiana a so as to induct the pounded up flood water into the fields of Bir Ghugiana ; that the cut was made by defendant No. 2 deliberately and mala fide and despite protest by the plaintiff and his employees ; that defendant No. 2 kept posted police guard at the said spot ; that the flood water released through the artificial cuts by defendant No. 2 inundated the area of Bir Gugiana and caused damage to the appellant, the details of which read as under :- (i) Loss to the Shisham plantation in the area of 200 acres estimated at Rs 27,000/-; (ii) Loss to 33 acres of paddy crop totalling Rs. 12,000/- (iii) Loss to citrus garden in 12 acres area, 5 years old totalling Rs. 25,000/-; (iv) Loss to cotton crop in 80 acres estimating Rs. 32,000/- ; (v) Loss to bajra crop in 70 acres of land estimated Rs. 9,800/- (vi) Loss to 75 acres of gowara crop estimated Rs. 10,500/- ; (vii) Loss to 10 acres of Shiham nursery to the extent of Rs. 10,500/-." It is further averred in the plaint that respondent No. 2 had no right to cause artificial inundation of the area of Bir Ghugiana ; that the appellant had suffered a loss of Rs. 1,26,300/- on account of the wrongful action of respondent No. 2 ; that the tortuous acts by respondent No. 2 were committed by him as an employee of respondent No. 1, while purporting to act in his official capacity in the course of his employment for the benefit of respondent No. 1 ; that respondent No. 1 is therefore, vicariously liable for the wrongful and tortuous acts of the said respondent No. 2 and is liable to make good the damage sustained by the appellant ; that respondent No. 2 is also personally liable to the amount of compensation amounting to Rs. 1,26,300/-.
(3.) The suit was resisted by respondents Nos. I and 2, who denied their liabilities to pay the amount of damages or compensation claimed by the appellant and pleaded that in September, 1962, area near Bir Ghugiana was badly flooded with rainy water ; that the flood water had accummulated there as a result of which a virtual take running into miles in breadth and length was created; that many villages were marooned in the lake and water was 6 to 7 feet deep at many places ; that the people of the village finding a serious collection of the flood water approached respondent No. 2, who reached the spot and found obstruction to the natural flow of. water caused by the people of Pakhi Khurd by constructing an artificial bund there ; that the plaintiff had stopped the natural flow of water-into the Bir area by constructing a bund near the Sapanwala minor on the boundary of Bir Ghugiana ; that the drastic situation created by the accumulation of supply of water in between the village Sadhanwala, Pakhi Khurd, Gonewala etc. warranted immediate removal of the bunds constructed by the appellant at the tail of Sapanwala minor and other bund raised by the people of Pakhi Khurd which would have allowed the water deposited there to flow towards its natural course, that is, through the fields of Pakhi Khurd ; that to save loss to the abadi and area of these villages at the request of the villagers and the employees of the appellant respondent No. 2 ordered removal of the bund near the Sapanwala minor so as to allow the flood water to have its natural course ; that the Deputy Commissioner and the Superintendent of the Police visited the spot and justified that action of respondent No. 2 ; that the cuts at the channels were made to save the marooned abadi and havoc in the ilaqua and were not illegal-and mala fide ; that the appellant did not suffer any loss due to the aforesaid cuts and the appellant has no cause of action against the respondent. On the pleadings of the parties, the following issues were struck by the trial Court : "(1) Whether defendant No. 2 made the cuts and channels as alleged in para No 10 of the plaint illegally and mala fide ? (2) Whether the plaintiff suffered any loss due to the said cuts and channels, if so, to what amount of damages, if any he is entitled and from whom ? (3) Whether the plaintiff has no cause of action to bring the suit ? (4) Relief " The parties led evidence. On consideration of the entire evidence, the trial Court decided issue No. 1 against the appellant. It was held by the trial Court that the flood waters had invaded villages Sadhanwala, Pakhi Khurd and Bir lands and the surrounding areas with the result that there was grave danger to the lives and properties of these villages and in this situation Mr. Raju, SDO after inspection of the spot and local enquiries removed the bunds protecting the Bir land to provide outlet for the flood water. This act on the part of the SDO was not mala fide and could not be held to be illegal inasmuch as it was motivated to remove danger to lives and properties of the subjects of the State whose protection is the primary duty of the sovereign power. Thus the act being an act of necessity on the part of the SDO did not result into any tortuous liability of the State or himself. The trial Court in view of the finding on issue No. 1 further held that issue No. 2 had lost its importance. Issue No. 3 was not pressed on behalf of the respondents. Consequently, in view of the finding on issue No 1, the suit of the appellant was dismissed with costs.;