1. This Second Appeal arises out of a suit by the plaintiff for injunction and for damages. The plaintiff is the owner of jiroyti land S. No. 784 in Peddapuram. This land was situated south of tank called Venkatapathiraju tank. The plaintiff complained that the defendants extended the tank towards the east, shifted the bye wash of the tank from north-west to the north-east and in the year 1916 bunded the bye-wash, so as to enlarge the water spread of the tank and cause submersion to plaintiff's land namely, S. No. 784. Plaintiff claimed Rs. 1,000 as damage.
2. The 1st defendant is the Secretary of State for India and defendants 2 to 6 are the ryotwari tenants under Government, whose lands are irrigated by the tank and whose lands would be benefited by an increase of the water-spread of the tank. The District Munsif found that the tank proper should be confined to S. No. 775 and did not extend to S. No. 760, as contended by the defendants 2 to 6, that it was not possible to say when the by wash, was changed from the west to east, but that the western outlet was closed, as the result of the opening up of a road and that the eastern outlet was bunded up, by the defendants causing damage to the plaintiff. He also found that defendants 2 to 6 were responsible for the opening up-of the eastern outlet and that the 1st defendant was also responsible inasmuch as he attempted to support the action of defendants 2 to 6 through his officers, that the plaintiff sustained damage to the extent of one thousand rupees and accordingly gave a decree.
3. On appeal, the Subordinate Judge finds in paragraph 9.
All that we see from the records,, maintained by the Government, is that Survey No. 775 is the tank bed.... The Government says that its tank is only in Survey No. 775. The bed of the tank: and the bund must necessarily be confined to that number but, as a matter of fact, we see that the tank extends some hundreds of feet, beyond its eastern limits and all this length is covered by fields of private owners, the bund also being owned by them. The Government has not made any attempt to extend the tank bund openly and as of right, but permitted the bed to drift for itself, according to the whims and the caprices of the adjacent owners.
4. Finally, he says in paragraph 10, that the tank has been in the present extended condition for over thirty years at least. But from his earlier remarks, it is also clear that this expansion was neither proper nor authorised by Government. He finds in paragraph 11 that the plaintiff cannot complain of the shifting of the bye-wash. In paragraph 12, he then states:
The only question that remains for consideration is whether the defendants have bunded up the bye-wash and the damage complained of was caused directly by such bunding up.
5. In the course of the paragraph, he first refers to the plaintiff's arzi dated the 30th October, 1916 (Exhibit T). Then, after referring to a stream of arzis, showing the anxiety of the plaintiff, he refers to the Carnam's report, Exhibit T(1), dated the 30th October, 1916, which shows that a bund was really put up, but was removed. Exhibit T(1) says:
On inspection, I found at that place, stakes a yard high, were set with small palmyrah and date trees, etc., laid across, for preventing the escape of water'.... ' On account of the said bund, the lands bordering on the interior of the tank, are being submerged and crops damaged.
6. The Subordinate Judge then refers to Exhibit U(2), dated the 9th of November, 1916, a report of the Minor Irrigation Overseer, which also confirms the fact of the existence of the bund across the bye-wash. The Subordinate Judge then states that the Minor Irrigation Overseer found that the bund, which was still in existence at the time of the inspection, was 6 inches higher than the full tank level of the tank. His inspection was on the 6th of November. The Subordinate Judge then states:
Thus the higher level of the bund by 6 inches continued from 30th October to the 6th of November.
7. Lower down, he refers to a large number of arzis, up to July, 1917. Then he states:
But it does not appear that the bund was raised, beyond the 4 inches mentioned in Exhibit A-3, until July, 1917.
8. He then refers to the report of the Overseer on the plaintiff's petition of the 29th July. This report stated that the existing natural bye-wash was bunded up to a height of one foot. The Subordinate Judge then states:
What this F.T.L. was, it is difficult-to see. Presumably, it had the effect of not allowing more than 1 foot of water over 784- A.
9. He then concludes:
From the mass of evidence, all that I have been able to gather is that the bye; wash was originally bunded up in October, 1916, to the extent of one yard, by the owners of the adjacent fields, but the bund was immediately removed by the village officers, that the remnant of the bund removed was still 6 inches high, when the Minor Irrigation Overseer went and saw it, in the beginning of November 1916, that subsequently there was a report again in the end of November 1916 and when the Overseer again inspected it, he' found 4 inches of the bund above the F.T.L. that he got the excess removed but under the orders of the Deputy Collector, he had to put it up again, that in July, 1917, there was again a bund put up, which was reported by the plaintiff and on which under the orders of the Tahsildar action was taken by the Overseer and the bund was removed, so as to have only one foot of water on the beneficial submersion land of 784-A.
10. He then says:
We have to see what damages the plaintiff sustained, mainly by reason of the bund put up and removed from time-to time.
11. It is clear from his findings just quoted and also from the statement, in paragraph 16 of the judgment, where he says:
The plaintiff cannot be compelled to be in perpetual fear of submersion and damage, and a duty is cast upon the 1st defendant, to keep his tank in such a position, as not to cause any damage to the plaintiff, the adjacent owner. A mandatory injunction will therefore be necessary to have the P.T.L. fixed and the outlet constructed, by raising a masonry weir, which would discharge the water accumulating beyond the permitted water-spread' that the Subordinate Judge is of the opinion that there is a wrongful act on the part of the defendants, which furnished a cause of action to the plaintiff's suit and which has caused him damage. The Subordinate Judge discusses the question of damages in paragraphs 13 to 15. At the end of paragraph 13, he says:
It is not possible to say what damage was caused, by which of these agencies In the absence of positive data I cannot fix the entire liability upon the defendants.
12. The agencies he refers to, in the sentence just quoted, are other natural agencies, such as heavy rains, overflowing of a feeder channel, etc In paragraph 14, he says:
But because of the abnormal rains, which had direct access to the plaintiff's fields and the plaintiff not having been able to show that the damage was mainly due to the overflow of the tank water and as there has been no wrongful act committed by the Government, their attempts having always been to avert damage, I must exonerate the 1st defendant from liability.
13. In paragraph 15, he says:
With regard to the second portion, defendants 2 to 6 are certainly wrong in having persisted in bunding up the tank first, to a height of one yard, then to a height of 6 inches and afterwards to a height of one foot. The damage caused by the rise of one yard would have been considerable, but it was immediately averted on the very day. The water of 6 inches depth was allowed to continue for more than a week and water of 4 inches we allowed to continue for some months. The immediate cause of the whole damage does not appear to be this slight rise in level, but the plaintiff is entitled to claim damages to some extent.
14. From all the above sentences quoted by me, the Subordinate Judge seems to be of the opinion that the plaintiff has certainly sustained damages, in the year 1916, but that the damage could not have been wholly caused by the wrongful act of the defendants in opening up the bye-wash, but that other natural causes must have combined with the wrongful act of the defendants, in producing the damage.
15. Accepting these findings of the Subordinate Judge, the question arises, whether the Subordinate Judge is right in giving nominal damages. In paragraph 15, he says:
for the reasons discussed above in fixing the damages, I do not think that the plaintiff would be entitled to much more than nominal damages.
16. His 'reasons discussed above' were not for fixing the damages, but for finding out the causes of the damage. Nominal damages are intended only where the plaintiff has sustained damnum sine injuria, that is, where a right of his has been infringed, but not so as to cause any sensible damage. In the present case, plaintiff has sustained damage. A perusal of the whole record in the case, beginning from Exhibit T, dated 30th October, 1916 and ending with Exhibit GGG of 25th August, 1917, along with oral evidence, including most of the defendants' witnesses, leads only to one conclusion, namely, that the plaintiff has sustained damage, by reason of the defendants' wrongful act. It may be the wrongful act would not have caused damage to the plaintiff if it were not strengthened by natural causes, such as heavy rainfall in that year and the Subordinate Judge himself, as I have shown from sentences quoted from his judgment, practically means to find that the defendants' acts strengthened by other natural causes, did cause real damage to the plaintiff: (see Exhibit W). In such a case, I do not think that nominal damages is the proper relief to be awarded to the plaintiff.
Mr. Lakshmanna relied on Mayne on Damages, p. 572.
Where, however, the plaintiff had evidently sustained some damage but the jury being unable to ascertain the amount found a verdict for the defendant the Court permitted the plaintiff to enter a verdict for nominal damages.
The case cited in Feize v. Thompson I Taunt 121 has nothing to do with the present case. That was a case, in which action was brought to recover general average upon a policy of goods, shipped on account of the plaintiff, from Amsterdam to London. The plaintiff proved a sum of 600 guilders to have been paid for a boat, which was to be apportioned as general average, but he did not make it sufficiently appear to what amount the defendant was liable to contribute. The jury could not ascertain any given sum, to be the proportion due to the plaintiff. On the other hand, two oases are relied on by the appellant which are I think more relevant. In Municipal Corporation of Bombay v. Vasudeo (1904) 6 bom. L.R. 899 the defendant was the Municipal Corporation of Bombay. It was there found that the Corporation erected some embankments and bridges, but in carrying out the works had not taken sufficient care, to avoid causing of damage to the plaintiff. The lower Appellate Court held that the work was negligently done, in relation to adjoining and neighbouring fends. In the year 1896 there were heavy floods; the floods were no doubt in the nature of a vis major; but the first Court below held that the vis major was the sole or approximate cause of the damage. The lower Appellate Court found that the floods of 1896 were so exceptional and unusual as to be classed under the category of vis major, but not so exceptional, such as by any reasonable man cannot be anticipated. In the present case also, there was a rainfall in 1916, in Peddapuram, slightly heavier than the preceding five or six years, but not of such an exceptional character, as could not be anticipated by a reasonable man. Such years of heavy rainfall occasionally occur once in five or ten years. A glance at the plan shows that the contour of the extended tank is the contour of 100-18, marked in green line on the plan. It submerged not only special rate land 784-A, but also a portion of land 784-B. It is true as remarked by Sedgiwick (vide.: Vol. 3 of Sedgiwiok on Damages, Sect. 942 p. 1948).
Where it was shown that the land' would have been flooded by natural causes but the defendant's act increased the loss, the measure of damages was the increase of loss.
17. But in the 'present case, the Subordinate Judge has not found that some definite portion of the damage, sustained by the plaintiff, would have been caused by the heavy rains of that year and other natural causes, even if the defendants' wrongful act had never existed. I understand his findings to mean that the damage sustained by the plaintiff was caused by all the causes put together, namely, the natural causes and the defendants' wrongful act, but that no definite portion of it can be assigned to any one cause, if it existed alone. To such a case the principle of Municipal Corporation of Bombay v. Vasudeo (1904) 6 Bom. L.R. 899, which itself rests on Fletcher v. Smith (1867) 2 A.C. 781 applies. In the case before the House of Lords, defendant diverted a natural water-course, which ran across and over his mine. The diverted water-course was insufficiently constructed and on occasions of certain heavy rainfalls the water flowed over the walls of the artificial water-course and flooded the plaintiff's mine. It was found that the defendant knew that the water-course was not as efficient as the old one, nor did he construct it in such a manner that it would be capable of conveying all the water, that might flow into it, from all such floods and rainfalls, as might reasonably be anticipated, to happen in that locality. The jury's answer was the rainfall was exceptional but new channel was insufficient. The insufficient condition was an insufficiency to cope with rain-water not exceptional, or in other words rainfall such as might reasonably be anticipated. On these findings of the jury, the plaintiff got a verdict, which was affirmed by the Court of Appeal and the House of Lords refused to interfere in the decision. I think the principle-of that decision applies to the present case. I cannot therefore accept the conclusion of the Subordinate Judge that this is a case, in which nominal damages only should be awarded to the plaintiff. It remains to be found, what are damages' sustained by the plaintiff. If the Subordinate Judge has given a finding, on the amount of damages sustained by the plaintiff, but which I was unable to accept I should call for fresh findings from the lower Court; but as I have already pointed out, the Subordinate Judge has never addressed himself to the question of the amount of damages, sustained by the plaintiff. What he said was that this is a case, in which nominal damages only should be awarded. I therefore think, it is open to me either to find the amount of damages myself, or to call for a fresh finding. Both the learned vakils for the parties are willing that I should find the amount of damages and thus avoid delay in the disposal of the case. The Munsif has not referred to the evidence in detail. It seems to me, his decree for Rs. 1,000 is excessive, as he practically accepted the plaintiff's figure, without any discussion. A Batavia garden, belonging to the plaintiff, is beyond the green line, to which I have referred already. I do not think the plaintiff is entitled to any damage for the loss of the Batavia trees. The plaintiff says:
The paddy crop was about to be fit to be harvested and water gradually rose and crop that might be a grace was hopelessly lost, before it was quite ripe. Two other garces of paddy could have been harvested from the rest of the land, but the harvesting was not possible, as all that also came to be fully under water. The Batavia and lemon and plaintain and chillies plants ail died, decaying in the water. Redgram to the extent of about 2, 3 putties was thus lost; horsegram to the extent of about 2,3 putties, chillies to the extent of 4, 5 putties.
18. Taking the smaller figures, given by the plaintiff, it seems to me that the plaintiff is entitled to damages, to the extent of Rs. 562. I may add that one sentence in paragraph 13 of the Subordinate Judge's judgment is unintelligible to me:
The plaintiff raised a small bund in his field 784-A so as to conserve water in that field.
19. This bund is a small bund and cannot operate, where the general level of the water rises beyond its level. It can come into operation only when the water goes below the level of the bund. To say that this bund has anything to do with the flooding of plaintiff's land and the damage caused to it seems to be a piece of special pleading. The Subordinate Judge refers to it, as one of the possible causes, that has caused the plaintiff damages, but at the same time be was unwilling to say that all the damage is caused wholly by it.
20. In the result, I partly allow the appeal and modify the lower Court's decree, by awarding damages, to the extent of Rs. 562, against defendants 2 to 6 only. It has been stated before me that the plaintiff and the 1st defendant had compromised the matter and that the 1st defendant had issued orders, about the maintenance of the tank to the satisfaction of the plaintiff; and I need not deal with that portion of the appeal, relating to the 1st defendant, j Plaintiff will get proportionate coats, throughout, from defendants 2 to 6, on the amount he has defendants. Defendants will bear their claim costs throughout.