S. Barman, J.
1. The applicability of the principle of foreseeability of consequence, as the effective test of liability for an alleged act of negligence, is the main point involved in this Second appeal by the defendant, after his death -- as the appellant from a reversing decision of the learned Additional Subordinate Judge, Baiasore, whereby he set aside in part the findings of the learned Munsif, Balasore, and decreed the plaintitfs' suit in their favour in terms of his judgment, in the circumstances hereinafter stated.
2. The plaintiffs' case, shortly stated, was thus: The plaintiffs are owners of plots Nos, 508, 508 and 509 of mouza Nischantpur in the district of Baiasore. The plaintiffs' said plots are adjacent to the defendant's plot No. 507 as shown in the map which is a part of the records. On June 17, 1956, in the midst of the monsoon of the year, the defendant dug a tank on the south of his plot No. 507 without any embankment, and put the earth, on the sides which is alleged to have spread over the plaintiffs' adjoining plots on account of heavy rains, and hereby caused damages to the plaintiffs paddy drop as alleged. On July 18, 1956 the plaintiffs filed the suit for declaration of title, confirmation of possession; in the alternative for recovery of possession, permanent injunction and damages. The defence taken in the suit, was that there was no encroachment; that the defendant dug the tank for his own convenience; that the alleged spreading of earth, if any, was a vis major (act of God) for which the defendant is not liable.
3. The trial court held that there was no encroachment and the plaintiffs were not entitled to the declaration prayed for; on the question of damages he found that there was damages caused by reason of the excavation of the tank which he assessed at Rs. 100/-. The trial court, however did not allow the plaintiff any damages because, -- as he found, -- the defendant was not liable and in the result, the trial Court dismissed the suit, in appeal, the learned lower appellate Court held that there was encroachment, on the basis of the measurement of the Civil Court Commissioner (Exts. 4 and 5); that there was spreading of earth by reason of the digging of the lank and ultimately there was damage which the plffs. suffered; the learned lower appellate Court passed a decree in favour of the plaintiffs for a sum of Rs. 100/- as damages, and also made an order directing the defdt. to put a protective embankment and remove the earth which had already spread, and further granted an injunction restraining the defendant from excavating any tank on his (defendant's) land. Hence this Second appeal.
4. At the outset, it was conceded, on behalf of the plaintiff-respondents, appearing herein, that, in any event, the judgment of the learned lower appellate Court should be modified to the extent that the portion of his judgment. --whereby he made a direction for protective embankment to be put on four sides and permanent injunction restraining the defendant from excavating any tank or raising any Bundh on his plot No. 507,-- cannot stand.
5. The main points, for consideration, in this appeal are : firstly, the question of liability of the defendant by reason of his digging of the tank on his land, secondly, if the defendant is so liable, what is the extent of the alleged encroachment, by reason of which the plaintiffs suffered the alleged damages.
6. On the question of liability, the settled legal position, -- in the light of which this case, on facts, is to be decided, -- is that where an owner of land, without wilfulness or negligence, uses his land in the ordinary manner, though mischief thereby accrues to his neighbour, he is not liable for damages, but, if with a view to use the land in an unusual manner, he brings upon his land water which would not naturally have come upon it, he will be liable for damages for the escape of the water into the land of his neighbour; where a defendant uses all reasonable and proper precautions for the safety of the bund, which he has a right to maintain, he cannot be made liable for damage caused by the escape or overflow of water on to the lands of others and the consequent injury of the crops thereon, if the escape or overflow be caused by the act of God, or vis major; if the bank of 3 tank is washed away by an extraordinary flood, without negligence on the part of the defendant, he is not liable for damages that may be occasioned by the overflow of water (Kenaram Akhuli v. Sristidhar Chatterjee, 15 Inn Cas 543 (Cal); Ram Lall Singh v. Lall Dhary Mohton, ILR 3 Cal 776.
7. With regard to the applicability of the rule in Rylands v. Fletcher (1868) LR 3 HL 330, their Lordships of the Privy Council in Madras Railway Co. v. Zemindar of Carvetenagarum 1 Ind App 364 (385) (PC) made it clear that though (1868) LR 3 HL 330 would not be binding as an authority upon a Court in India not administering English law, their Lordships are far from holding that, decided as it was, in the application of the maxim sic uters tuo ut alienum non leadus expressing a principle recognised by the laws of all civilised countries, it does not afford a rule applicable to circumstances of the same character in India, -- their Lordships expressed the opinion, however that the circumstances of the case, --as one before me in this Second appeal, -- are essentially distinguishable; before a person can be held liable in damages for injury caused to his neighbour's land by water either flowing from the former's land to the latter's or percolating from the one into the other, it must be shown that the water was brought or collected on his land by him voluntarily for his own purpose in a non-natural user' of it; otherwise, he is not liable (see also Moholal Maganlal v. Bai Jivkore, ILR 28 Bom 472.
8. In the present case, the defendant had the right to use his land; there was already a tank on his land which he dug; he put earth on the embankment for more strength; it all happened by reason of unprecedented rains, during monsoon in the middle of June, over which the defendant had no control; thus the defendant could not foresee the consequences of his digging of the tank on his land, which was in course of his normal use of the land 'a non-natural user' of it; the overflow of rain water could not be foreseen by the defendant. The unforeseen and unforeseeable over-flow of rain water because of the floods in the district of Balasore -- where the disputed lands with the tank were situated, -- was a vis major (an act of God). It cannot be said that any act of the defendant, in the matter of digging of the tank, and putting of the earth so dug out of the tank, in the manner it was done, -- was, in any way, not normal use of the land, that is to say, 'a non-natural user' of it.
9. The trend of the law, on the point, appears to have culminated in a recent decision of the Privy Council In Overseas Tankship (U. K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (1961) AC 388 (an appeal from New South Wales), where it was held that a defendant is liable in negligence only for those consequences of his act that a reasonable man could have foreseen, and in doing so has repudiated the rule, laid down by the Court of appeal in Re, Polemis and Furness Withy and Co. ltd. 1921-3 KB 560 that a defendant is liable for all the direct consequences of his acts, even though unforeseen. Though the Courts in India are not now, since independence, bound by the Privy Council's decisions, it would not be wise to suppose that the opinion of the Board should be ignored by Judges in India. The Privy Council thought that the Polemese rule was inconsistent with other decisions of the Court of appeal and House of Lords, and laid down the rule of foreseeability of consequences as the test of liability, namely, that the essential factor in determining liability for the consequences of an act of negligence is whether the damage is of such a kind as the reasonable man should have foreseen. Liability does not depend solely on the damage being the 'direct' or 'natural' consequence of the present act; but if a man should not be held liable for damage unpredictable by a reasonable man because it was 'direct' or 'natural', equally he should not escape liability, however, 'indirect' the damage, if he foresaw or could reasonably have fore-Men the intervening events which led to its being done. Foreseeability is thus the effective test--the 'direct' consequence test leads to nowhere but the never-ending and insoluble of causation.
10. Having regard to the well settled legal position, as discussed above, I am of opinion that on the facts and circumstances of this case, the defdt having not foreseen the consequences of his act, which was in course of his normal use of his land as aforesaid, he is not liable.
11. In view of my finding that the defdt is not liable, the consideration of the question of extent of alleged encroachment and consequential damages thereupon will be academic; and it is, therefore unnecessary to express any opinion on the other points.
12. In the result, therefore, the decision of the learned lower appellate Court, decreeing the suit in favour of the plaintiffs -- is set aside. The plaintiffs wit stands dismissed. The appeal is accordingly, allowed with costs throughout.