1. We are bound by the as yet unreported opinion of the Full Bench in the I.P. Appeal No. 6 of 1908 to set aside the decree of the District judge as having been made without jurisdiction. We then have the decree of the District Munsif before us, and the respondent asks us, in the circumstances of the case, to satisfy ourselves whether it is right in law, and if not, to make an order under Section 25 of the Provincial Small Cause Courts Act IX of 1887. It is not denied that we have jurisdiction to take this course, but it is contended that we ought not to do so without an application. Section 25, Act IX of 1887, however, does not require an application before action is taken. We think we may, therefore, take the decree of the District Munsif into consideration and we are clearly of opinion that it was wrong and ought to be set aside. The case of Damothara Mudaliar v. Secretary of State for India I.L.R. (1894) M. 88 differs materially from the present case; that was a case of an artificial tank; this is a case of natural stream which is in no sense the joint property of the various riparian owners. In that case the zemindar did not decline to accept the work as done for his benefit; in this the defendant did do so. The case points out that Section 70 of the Indian Contract Act (Act IX of 1872) is not to be read so as to justify the officious interference of one man with the affairs or property of another or to impose subjection in respect of services which the person charged did not wish to have rendered and the learned Judges were able to apply that section only because the absence of disapproval by the zemindar made it lawful for the Government to do the act for him within the meaning of that section.
2. Here there is no such case : the defendant did not want any work to be done for him and said so; the work was not done on his property or to save his property from inevitable destruction, and he did not want it. Moreover, the plaintiff having notice that the defendant did not want the work and would not pay for it was not justified in doing it for him unless he intended to do it gratuitously. We set aside the decree of the District Judge. The decree of the District Munsif is reversed and the suit dismissed with costs throughout.