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Periakaruppan Vs. Palaniyandi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1895)ILR18Mad28
AppellantPeriakaruppan
RespondentPalaniyandi
Excerpt:
provincial small cause courts act - act ix of 1887, schedule ii, clause 35(i)--jurisdiction--whether obstruction of a watercourse amounts to 'diversion' within the meaning of clause 35(i). - - this appears to me to be clearly a case falling under the clause of the small causes act already cited......the flow of water' was not felicitous. it appears from the record that plaintiff has certain cowle lands in sivaganga, that a channel led off from the puthur tank to those lands, and that petitioner's obstructions prevented the plaintiff from taking water along it, that loss of crop was the damage which resulted, and that the water obstructed flowed into ayan channels. this appears to me to be clearly a case falling under the clause of the small causes act already cited. the contention that obstruction is not diversion seems to be absurd, since when the flow of water to the cowle lands along the channel was obstructed, it must be diverted in whole or part from the cowle lands, and since it is immaterial whether the diversion was into the tank itself or into ayan or zamin channels.....
Judgment:

Muttusami Ayyar, J.

1. This was a suit for compensation due to defendant having wrongfully obstructed the flow of water to plaintiff's cowle land, and the question raised for determination on revision is whether Sub-clause i, Clause 35 of the second schedule of the Provincial Small Causes Courts Act does not bar the jurisdiction of the Court of Small Causes from entertaining such suit. The contest is as to whether obstruction to the flow of water which is referred to by the Subordinate Judge in his judgment must be taken to imply necessarily a 'diversion' of the water within the meaning of the provision of law cited above. It is contended on behalf of the petitioner that mere obstruction does not amount to diversion, and that the use by the Subordinate Judge of the words 'obstructed the flow of water' was not felicitous. It appears from the record that plaintiff has certain cowle lands in Sivaganga, that a channel led off from the Puthur tank to those lands, and that petitioner's obstructions prevented the plaintiff from taking water along it, that loss of crop was the damage which resulted, and that the water obstructed flowed into Ayan channels. This appears to me to be clearly a case falling under the clause of the Small Causes Act already cited. The contention that obstruction is not diversion seems to be absurd, since when the flow of water to the cowle lands along the channel was obstructed, it must be diverted in whole or part from the cowle lands, and since it is immaterial whether the diversion was into the tank itself or into Ayan or zamin channels or elsewhere. It is enough that if by the obstruction the flow of water to plaintiff's cowle lands is diverted from them so as to diminish the water-supply and to cause damage.

2. I set aside the decree of the Subordinate Judge as one passed without jurisdiction, and direct that the plaint be returned to plaintiff for presentation to a Court of competent jurisdiction.

3. Plaintiff will pay petitioner's costs throughout.


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