Hemant Gupta, J. - (1.) THE plaintiffs are in second appeal aggrieved against the judgment and decree passed by the learned First Appellate Court whereby suit of the plaintiffs for recovery on account of loss of standing crops to the extent of Rs. 40,000/ -, was dismissed.
(2.) IT is the case of the plaintiffs that they are owners in possession of the land measuring 23 kanals 9 marlas which is being irrigated by Pabra Distributary through the sanctioned watercourse. The grievance of the plaintiffs is that the banks of the said watercourse are poorly maintained. During the intervening night of 15/16.12.1999, a breach occurred in the banks of the watercourse abutting the fields of the plaintiffs and due to that breach, the standing wheat crop of the plaintiffs washed in the floods and perished and on account of such breach, the plaintiffs have suffered a loss due to negligence and carelessness of the defendants. In reply, it is the stand of the defendants that some beneficiaries have made cut in the canal just to give water to their fields during the rabi crops and the canal was immediately repaired and no loss was caused as per the revenue record.
(3.) THE learned trial Court decreed the suit partly awarding a sum of Rs. 20,000/ - on account of lifting the silt as a consequence of the water flow flowing to their fields, from the land of the plaintiffs. However, the learned First Appellate Court found that earlier the plaintiffs filed a suit for mandatory injunction in January, 2000 seeking directions to the defendants to remove the silt which had accumulated up to the height of 2 -3 feet. But copy of the plaint of the earlier suit has not been filed. It was found that if the plaintiffs have suffered any loss, that fact would have been mentioned in the plaint, but the same has been kept back by the plaintiffs. Still further, it has been found that undisputedly, the canal water has entered into the fields of the plaintiffs, but is not a case of negligence of the defendants. A deliberate cut was made by the land owners and such like cuts are made every year after the sowing season. It was also found that these cuts are usually made at night time and once the cut is made, there is no stopping. The water flows out and in this case the breach had widened that it took 175 labourers to plug the breach. The department had put in all sources to stop the water. Thus, it was found that the plaintiffs have failed to prove the negligence on the part of the department.;