Hombe Gowda, J.
1. This is a defendant's appeal against the judgment and decree of the learned District Judge, Coorg, Meracara in O. S. No. 36 of 1959, decreeing the suit filed, by the respondent claiming damages from the appellant to the extent of Rs. 700/- only with a further direction that the appellant should pay costs of the respondent on the sum of Rs. 700/-as damages.
2. The respondent filed a suit against the appellant claiming damages of Rs. 6,000/- in respect of the destruction said to have been caused to his orange garden on account of the fire started by the appellant in his garden which is adjacent to the respondent's garden, on 19-3-1959. The respondent is the owner of an estate bearing S. Nos. 113/1, and 113/2 in Ammathi village, South Coorg. He had raised orange trees on an extent of 11.93 acres in these survey numbers and they were bearing fruits. The appellant is the owner of Survey No. 135 of the same village. The said land is adjacent to the garden land belonging to the respondent referred to above. It is alleged that on the afternoon of 19-3-1959, the appellant set fire to his land in order to burn the stumps of the trees which he had cut for the purpose of preparing the land for planting coffee plants; that the appellant had not taken necessary precautions before he set fire and as a result of it, the fire spread into the garden of the respondent and burnt about 3,600 fruit bearing orange trees.
It is alleged that the appellant, his clerk and a servant who were present at the spot, made some attempts to quench the fire that was rapidly spreading into the respondent's garden hut in vain. Having come to know of this, the respondent lodged a complaint with the police to the effect that the appellant had, by his negligent act, committed an offence punishable under Section 435 of the Indian Penal Code. The police, after investigation, submitted a 'B' report. The revenue authorities visited the spot at the request of the respondent on 21-3-1959 and drew up a mahazar estimating the damages caused to the respondent and recommended his case to the Government for compensation. The respondent alleged that it is due to the careless and negligent act of the appellant in having set fire to his land without taking necessary precautions, that, it spread into his garden and destroyed the fruit bearing orange trees and, therefore, the appellant was liable to pay him damages. He estimated the damages at RS. 6,000/-. The respondent issued a notice to the appellant demanding a sum of Rs. 6,000/- towards damages on account of the destruction of fruit-bearing trees standing in his garden. The appellant sent a reply denying his liability.
Therefore, the respondent filed a suit for recovery of the sum of Rs. 6,000/- towards damages caused to him on account of the appellant's negligence in not taking necessary precautions to prevent the fire that he started in his land from spreading into the respondent's land. The appellant totally denied his responsibility for the damages done to the respondent's garden. He denied that he set fire to his land on the 19th of March, 1959, to burn the stumps of the trees that he had cut. He further denied that 3,600 fruit bearing trees standing in the land of the respondent were destroyed on account of the fire and put the respondent to prove all these allegations. Incidentally, he suggested that the fire which destroyed some trees in the estate of the respondent came from somebody else's land and it was purely 'accidental' and that it spread into the respondent's orange garden, which was in a dilapidated condition, in spite of his attempts to quench the fire with the assistance of his servants.
3. On these allegations the learned District Judge framed the following issues:
1. Whether the defendant, his overseer and his servants cut the jungle in his land in Sy. No. 135 and whether they set fire to the dry jungle in the said jungle on 19-3-1959?
2. Whether the said fire became ablaze and spread to the orange garden of the plaintiff and burnt the whole estate of the plaintiff and caused him damages as averred in the plaint?
3. Whether the defendant and his servants were negligent and acted with carelessness?
4. Whether the damages claimed are excessive?
5. To what relief is the plaintiff entitled?
4. The respondent examined seven witnesses to establish his case that the appellant had cut the jungle in his land bearing S. No. 135; that he set fire to his land at or about 12 noon on 19-3-1959 in order to burn the stumps of trees and the said fire spread into his orange garden and destroyed the trees and that he had suffered damages to the extent of Rs. 6,000/-. The appellant examined two witnesses including himself, to rebut the case of the respondent and to establish his case that it is on account of the accidental forest fire emanating from an unknown source that some of the trees standing on the land of the respondent were destroyed in spite of his efforts to quench the same. The learned District Judge rejected the evidence of the appellant and his witnesses that the fire which caused damages to the garden of the respondent was 'accidental'. He held, on the evidence placed on record, that the appellant set fire to his land in order to burn the stumps and other jungle trees standing in his land with a view to prepare the land for planting coffee plants on 19-3-1959 and that the said fire spread into the adjoining land of the respondent on which the fruit-bearing orange trees were standing and caused some damage to the respondent.
The learned Judge further held that the respondent failed to establish by adducing reliable and satisfactory evidence that large number of fruit-bearing orange trees were destroyed by the said fire and that he had suffered damages to the extent of Rs. 6,000/- as a result of it. On the material on record the learned District Judge held that the respondent had suffered damages to the extent of Rs. 700/- only and passed a decree for the said sum in favour of the respondent with a direction that the appellant should pay to the respondent costs on the said sum and bear his own costs in the suit. It is against this judgment and decree passed by the learned District Judge, that this appeal has been filed by the defendant appellant.
5. It is urged by Sri Bopanna, the learned counsel for the appellant that there is no creditworthy evidence on record on the basis of which the learned Judge reached the conclusions that the appellant set fire to his land on the after-noon of 1V-3-1959 in order to burn the stumps and the jungle trees with a view to prepare the land for cultivation and that the said fire spread into the land of the respondent and caused damage by destroying several, fruit-bearing orange trees. It is also contended that there is no acceptable evidence on record to establish that the orange trees on the garden of the respondent were capable of bearing fruits and that the respondent was getting an income from the sale of the fruits and that he suffered damages to the extent of Rs. 700/- on account of the destruction of the trees. It is further urged that unless the respondent proves that the appellant acted negligently and that it is as a result of such negligence that he suffered damages, the respondent cannot fasten the liability to damages on the appellant.
It is strenuously urged that the learned District Judge erred gravely in relying upon the highly interested, hopelessly discrepant and contradictory evidence of P.W. 1 Nelamakkala Thimmayya and P. W. 2 Chimmanda Medappa, in coming to the conclusion that the appellant and his servants set fire to his land on the date of the incident and that the said fire spread into the garden of the respondent and caused the destruction of orange trees. It is further contended that the learned District Judge was not justified in rejecting the unimpeachable documentary evidence produced by the appellant, viz: Exhibit D-3, which establishes that the appellant had raised coffee plants in Survey No. 135 in the year 1948 and holding that the land was being prepared for planting coffee seedlings in March 1959. It is also contended that the quantum of damages awarded by the learned District Judge is not based on any credit-worthy evidence and is highly arbitrary.
6. The burden of proving negligence on the basis of which a claim for damages is made lies upon the party who alleges it and to establish a case, he should prove the negligence affirmatively by adducing creditworthy evidence of it. Mere proof that an accident has occurred, the cause of which is unknown, is not invariably proof of negligence. The respondent has, therefore, to establish that it is the fire that the appellant started on his land without taking necessary precautions to prevent the same from spreading into the neighbouring lands, that spread into his garden and caused the destruction of the orange trees, to succeed in this case.
7. The respondent examined two witnesses, viz., P. W. 1 Nelamakkala Thimmayya who is a neighbour and P.W. 2 Chimmanda Medappa who was in the employment of the appellant on the date of the incident, to establish that the appellant set fire to his land to burn the stumps of trees with a view to prepare his land for raising a plantation at or about 1 p.m. on 19-3-1959 and that the said fire spread into the garden of the respondent and caused the destruction of the orange trees on the land in spite of some attempts made by the appellant and his servants (including P.W. 2) to quench the same. The evidence of these two witnesses is attacked on the ground that is interested and discrepant in material particulars and is, therefore, not creditworthy. It is urged that P.W. 1 Nelamakkala 'Thimmayya who admittedly owns a land which adjoins the garden of the respondent, had admitted m the course of his cross-examination that there was a land dispute between himself and the appellant three years ago and the learned District Judge should have, in the circumstances rejected his evidence and should not have relied upon bis explanation that the feelings between the appellant and himself were not strained in that account.
P. W. 1 while admitting that there was land dispute between himself and the appellant about three years prior to the incident, has stated that the same was amicably settled by the intervention of the Parpathigar and that he has been on talking terms with the appellant. There is nothing to disbelieve his version. It is urged that P.W. 1 Thimmayya had, in the course of his cross-examination, stated that he did not see the appellant and his servants attempting to quench the fire while P.W. 2 Medappa had asserted that such an attempt was made by the appellant and his servants and this contradiction is sufficient to hold that P.W. 1. Nelamakkala Thimmayya was not at all present at the spot on the date of the incident. We are of the opinion that the above infirmities in the evidence of P.W. 1 Thimmayya, are not sufficient to reject his evidence.
8. P.W. 2 Medappa was admittedly in the employment of the Appellant on the date of the incident. He has given evidence to the effect that he was present in the garden along with the appellant and another servant by name Soma on 19-3-1939; that the appellant set fire to his garden with a view to burn the stumps of trees and shrubs and to prepare the land for planting coffee seedlings at about 1 p.m. and that the said fire spread into the garden of the respondent in spite of attempts made by them to quench the same to prevent it. It la true that P.W. 2 Medappa is no longer in the employment of the appellant. It is also true that the witness has admitted that after he left the services of the appellant, he was working under Mukkati Manjappa, a maternal uncle of the respondent for some time. This fact by itself is not sufficient to reject his evidence. He has denied the suggestion that he left the services pf the appellant as a charge of theft was levelled against him.
No other suggestion is made to him in the course of his cross-examination to indicate that he has voluntarily come forward to give evidence to falsely implicate the appellant It is significant to note that in the complaint lodged by the respondent against the appellant on 24-3-59, the name of P. W. 2 Medappa and of other servant by name Soma had been mentioned as those of the persons who were present along with the appellant at the spot when the accident took place. We can, therefore, safely accept the evidence of P. W. 2 Medappa that he was present at the spot on the date of the incident. P.W. 2 Medappa has stated that P.W. 1 Thimmayya was in his land at the time of the accident and made necessary arrangements to prevent the fire from spreading to his land. The evidence of these witnesses to the effect that it is the fire that was started in the land of the appellant to burn the stumps of the trees that spread into the garden land of the respondent and caused damage which is not shown to suffer from any other infirmities, cannot be rejected.
The respondent has, therefore, established that some orange trees in his garden were destroyed by the fire that was started in the land belonging to the appellant which adjoins the said garden, on 19-3-1959. As a matter of fact, the appellant has admitted that the respondent had suffered some loss or damage by the destruction of some orange trees standing in his garden and suggested that the fire emanated from an unknown source or in other words, it is on account of the 'accidental' fire that the trees were destroyed. He stated in Exhibit P-3, a reply sent by him to the lawyer's notice issued by him by the respondent, thus:
'On learning from some neighbouring people, that Jungle fire (Kadu Benki) from some other adjoining land has entered your client's orange garden and burning the orange trees, my client asked his servants to put off the fire.'
To state that either our client or his people due to their negligence, without controlling the fire which they were using in their garden, allowed to spread to your client's orange garden and thereby the trees were burnt, etc., are all absolutely false.
Such being the case the claim made by your client claiming for some Banjar orange trees burnt, from my client, to which my client is not at all liable.'
9. This Statement clearly establishes that the fire destroyed some of the orange trees standing in the garden land belonging to the respondent, on 19-3-59. The suggestion of the appellant is that it is 'accidental fire' or 'Forest fife' as he calls it, that caused the destruction of the trees in the garden of the respondent. The appellant examined one witness -- D. W. 2 Chourira Muthappa, to prove that the fire came from some unknown source. The learned District Judge, has, in our opinion, rightly rejected the version of this witness that the fire was 'accidental' and also the faint suggestion of the appellant that it is not unlikely that the fire started from the burnt end of a beedi or cigarette thrown by some person while passing through the 'kadanga' which is in between the appellant's land and the respondent's garden. We are of the opinion that the learned Judge has reached the correct conclusion that it is the fire that the appellant started in his land with 3 view to burn the stumps of the trees in order to prepare the land for cultivation, that spread into the garden of the respondent and caused the destruction of the orange; trees standing on the land of the respondent.
10. The principles that the Courts should bear in mind in regard to the fixation of the liability of a person who kindles fire on his land or property have been stated in Halsbury's laws of England Vol. XXIII (II Edition) at page 624, thus :--
'The duty of an occupier of premises, on which a fire is purposely kindled by the agency of the occupier or some one for whom he is responsible is to secure that it shall not escape beyond the bounds of his premises so as, in the ordinary course, to cause damage to his neighbours or their property, or the public. For the results of a fire so kindled he is liable, but he is not liable for the results of a fire which is kindled by accident and without negligence, nor of one which is kindled or which spreads through the unauthorised act of a stranger, or vis major, or the act of God'.
11. In dealing with the matter whether a person who starts fire in his land can be expected to know the consequences of his act and can be made liable for damages caused on account of the fire, Anand and Sastris' in their book 'Law of Tort' state the principles at page 487 thus:--
'22. Fire -- fire is a dangerous thing. Consequently the principle of Rylands v. Fletcher, (1868-LR 3 HL 330) applies to it. In Musgrov v. Pandelis, (1919-2 KB 43), a defendant was held liable for damages caused by a fire started in the carburetor of a motor car filled with gazolene. Bankes, L.J. said :
'A man was liable to common law for damage done by fire originating on his own property -- (1) for the mere escape of the fire; (2) if the fire was caused by the negligence of himself or his servants of by his own wilful act; upon the principle of Rylands v. Fletcher, (1868-LR 3 til 330).
This principle was not then known by the name, because Rylands v. Fletcher, (1868-LR 3 HL 330) was not then decided; but it was an existing principle of the common law.....'
The occupier of premises is bound, if he starts a fire either intentionally or by negligence, at his peril to keep it front doing damage to others, But tie is not liable, if it cannot be proved that the origin of the fire was due to either of the causes above described.
Whether a fire begun accidentally, is continued by the negligence of the occupier he will be held liable, for, in such a case, the negligence is responsible for the continuance of the fire and the destruction of the plaintiffs property. Under such circumstances the occupier must take reasonable care to prevent the fire from spreading and if he omits to take such care he is liable.
A fire does not begin accidentally when it is caused or produced by a dangerous thing for which the owner is responsible.....'
12. 'A Division Bench of the Madras High Court in Chinnaswami Chettiar v. Sundermmal, : AIR1955Mad68 held that if it was found that the fire was caused in the defendant's house by electric short circuit in the electric system in the house, which could not have been foreseen or anticipated and that it was caused accidentally, and that the fire spreading to the adjoining premises of the plaintiff, had burned down a part of the plaintiff's buildings, the damage caused to the plaintiff's property was not by the fire, which was due to accident, but the fire, which spread to the gunny bags on the northern side of the plaintiff's window, to stop which, no attempt was made and that the damage caused to the plaintiff's property was due to the negligence on the part of the defendant in not taking any steps to prevent the spread of fire and that therefore the defendant was liable for the damage caused to the plaintiff's premises. In coming to this conclusion, their Lordships took into consideration the fact that the defendant had not taken necessary steps to prevent the spreading of the fire into the neighbour's land either by informing the police about the fire and requisitioning the fire extinguisher or sending a message to the plaintiff or calling the attention of the neighbours to quench the fire.
13. In Overseas Tankship (U. K.) Ltd. v. Morts Dock and Engineering Co., Ltd., (1961) 1 All ER 404 the House of Lords held that the test of liability for the damage done by fire was the foresee ability of the Injury by fire.
14 Therefore, once it is established that it is the fire that the appellant started on his land that spread into the garden of the respondent, the burden of proving that he had taken all necessary precautions and that it is not on account of his negligence that the fire spread into the garden of the respondent, is heavily on the appellant. The appellant has not placed any material to prove that he had taken necessary precautions to prevent the fire from spreading into the neighbour's land before he set the fire on his land. Admittedly, he had not informed the respondent of the fact that he was setting fire to his land to burn the stumps of the trees on his land and that he may be present on his land with a view to prevent the fire from spreading into the neighbouring land. Admittedly, there is a 'Kadanga' -- a vacant space of 100 feet -- between the land of the appellant and that of the respondent. Fire started by the appellant has travelled beyond this 'kadanga' and spread into the garden of the respondent. It can therefore, be safely presumed that the appellant acted negligently and had not taken necessary precautions to prevent fire from spreading into the neighbour's land and it is, on account of his negligent act that the same spread into the land of the respondent and caused damage to him.
15. In the case before us, it is admitted that the appellant did not send any Information to the respondent before or after he set fire and at the time the fire was spreading into the garden of the respondent to be present at the spot to take necessary preventive, steps, if need be. He did not admittedly send for the fire extinguisher from Mercara. In these circumstances, it is not open to the appellant to contend that it Is not on account of the negligence or carelessness that the fire started on his land spread into the garden of the respondent and caused the damage.
16. When the appellant set fire to his land without taking necessary precautions to prevent the same from spreading into the lands in the neighbourhood he was 'playing with fire' and should be deemed to have foreseen the possibility of the fire spreading into the lands adjoining his land and is liable for any damage caused to them. On the material placed on record, the learned Judge was justified in coming to the conclusion that It is the fire that started by the appellant on his land in order to burn the stumps of the trees that he had cut, without taking necessary precautions to prevent the same spreading into the garden of the respondent and caused damage to him. We do not find any material on record to interfere with the finding of the learned District Judge.
17. As regards the damages, the respondent claimed a sum of Rs. 6,000/- on the basis that about 3,600/- fruit-bearing orange trees which were standing on the land were completely burnt. The learned Judge, who scrutinised the evidence produced by the respondent to establish his claim for damages of Rs. 6,000/- rejected it as excessive and unreasonable. He has held that no satisfactory oral or documentary evidence has been placed on record to establish that the damage, to the extent of Rs. 6,000/- was in fact caused to the respondent, the learned Judge took into consideration the valuation made by the Revenue Authorities who visited the spot at the request of the respondent, on 21-3-1959, and drew up a mahazar with regard to the nature and extent of the damage caused to him. The Revenue Authorities had estimated the damage at Rs. 700/-, and had recommended to the Government to pay the said sum of money as compensation to the respondent. The appellant did not place any material to rebut this unimpeachable piece of evidence. He was content by totally denying his liability. In these circumstances, we are unable to accept the contention of the learned counsel for the appellant that the quantum of damage awarded Is not based on the material placed on record and is excessive.
The respondent has not preferred any appeal or cross-objection with regard to the disallowance of a major portion of his claim. In the state of evidence on record we are of the opinion, that the learned District Judge was justified in holding that the appellant is liable to pay damages of Rs. 700/- with costs on the said amount to the respondent.
18. No other points were urged by the appellant.
19. In the result, therefore, for the reasons mentioned above, this appeal fails and the same Is dismissed with costs.
20. Appeal dismissed.