EAST PUNJAB PROVINCE STATE OF PUNJAB Vs. MODERN CULTIVATORSLADWA

JUDGEMENT

(1.) On 15-8-1947, there was a breach in the western bank of the Western Jamuna Canal at R. D. No. 138000 near Sangipur and Jandhera villages due to which the canal water flowed over an area of land on which sugar-cane, maize and other crops had been sown by the plaintiff-firm, Messrs. Modern Cultivators, Ladwa. It was alleged by the plaintiff-firm that this breach was due to negligence on the part of the canal authorities and that they further defaulted in repairing this breach with all possible speed not with standing the repeated complaints made by the firm and other villages to the authorities and that the water from this breach continued flowing for a considerable time and the breach was ultimately closed as late as October, 1947. The plaintiff-firm claimed to have suffered loss to the extent of Rs. 60,000/-by their standing crops having been damaged and another Rs. 10,000/-due to their inability to sow the next harvest on account of the continued flow of the water over the land in dispute and the water-logging due to the same. A suit for the recovery of Rs. 20,000/- by way of damages was instituted on 15-10-1948, by the plaintiff-firm through its partners (hereinafter referred to as the plaintiff's) against the East Punjab Province (as it was then called). The plaintiff's had originally given notice under S. 80, Civil Procedure Code, claiming Rs. 70,000/- but in the plaint they gave up the balance of the claim and confined their claim to a sum of Rs. 20,000/- only.

(2.) The position taken on behalf of the defendant was that the breach which had occurred on 15-8-1947, was in the old inlet of Chhalaundi Silting Tank, that the canal water which escaped through the aforesaid breach flowed back into the canal though the outlet of the Chhalaundi Silting Tank and that the Executive Engineer went to the spot and found that no damage had been caused and that the breach was duly closed and strengthened. It was further stated that damage to the crops was due to the overflowing of various rainwater nullahs which had overrun the land in question due to the heavy rains during the month of September because the flood-water brought by these nullahs could not be fully discharged into the canal as was usually the case because the canal was running in fully supply. Pleas of limitation and lack of a proper notice under S. 80 and non-maintainability of the suit due to the plaintiff-firm being unregistered, were also taken. As a result of these pleading the following issues were settled:

(3.) The trial Court held that the suit was maintainable because the firm had been registered during the pendency of the suit, that the suit was governed by Art. 36 of the Indian Limitation Act and was, therefore, within time, that notice under S. 80, Civil Procedure Code, was in accordance with law and that the plaintiff's had suffered damage due to the breach in the canal and the amount of Rs. 20,000/- claimed by them was not excessive. As a result of these findings the suit of the plaintiff's was decreed in full, with costs, and the defendant (now State of Punjab) has filed the present regular first appeal against the aforesaid judgment and decree.