G. Rajasuria, J.
1. This appeal is directed against the judgment and decree dated 13-7-1992 passed by the learned Subordinate Judge, Tuticorin, in O.S. No. 141 of 1988 which was filed by the plaintiff as against the defendant for recovery of a sum of Rs. 72,400/- towards damages and for issuance of a mandatory injunction for irrigating the lands of the plaintiff described in the schedule of the plaint through sluice Nos. 12, 13, 14 and 15 of Srivaikundam Tenkal, Tamirabharani river and for other reliefs.
2. Bereft and niggard of details, the case of the plaintiff as found set out in the plaint could be portrayed thus:
The plaintiff John Nadar is owning 7 acres and 5 cents of Nanja lands at Kadayanodal village, Alwar Thiru Nagari Sub-Registration, Tuticorln District, His land and other adjacent lands constituting 150 acres of land are expected to be irrigated through Sluice Nos. 12, 13, 14 and 15 of Srivaikundam Tenkal. However, defendants did not take care of those sluices and thereby Sluice Nos. 14 and 15 were dumped with various types of materials and they were fallen into disuse and water could not pass through those sluices so as to irrigate the plaint schedule property. Consequently, the plaintiff could not cultivate his lands for several years together. His representations to the defendant were stonewalled and there was no positive response from the defendant till the filing of the suit. The plaintiff, previously cultivated the lands and had harvest twice a year, for each harvest, he got 80 Kottais of paddy. In a year, he incurred a loss of 160 Kottais of paddy. The cost of each Kottai would be around Rs. 200/- to Rs. 420/-. Hence the suit for damages in a sum of Rs. 72,000/-representing his loss which ensued due to his inability to cultivate, for want of irrigation facilities and he also claimed the relief of mandatory injunction.
3. Per contra, denying and disputing, challenging and impugning, the averments/allegations in the plaint the defendant filed the written statement which would run thus:
The suit is not maintainable. The Government Is bound to maintain only water bodies such as ponds, channels leading to sluices. However, the individual agriculturists who are in need of irrigating their lands, should make their own arrangements through channels laid down by them. Agriculturists should have stored water in the canals and from that they should have picked up water and irrigate their lands. The Government cannot be held liable for any loss. Accordingly, he prayed for the dismissal of the suit.
4. Based on the above pleadings, the trial Court framed as many as five issues. During trial on the side of the plaintiff, he examined himself as P. W. 1 and Exs. A. 1 to A. 16 were marked and on the side of the defendant D. Ws. 1 and 2 were examined and Exs. B. 1 and B. 2 were marked. Commissioner's report Ex. C. 1 and Sketch Ex. C. 2 were also marked.
5. The trial Court ultimately awarded damages to the tune of Rs. 36,000/- in favour of the plaintiff payable by the defendant. However, the trial Court dismissed the prayer for mandatory injunction on the ground that it was barred by limitation.
6. Being aggrieved by the said Judgment and decree of the trial Court, the defendant preferred the appeal and there is no Cross-Appeal.
7. The main grounds based on which the defendant filed this appeal, could be set out hereunder:
The trial Court failed to appreciate the evidence on record properly. The trial Court failed to see that the Nezereth road had been laid 20 years anterior to the filing of the suit. However, the plaintiff would allege that in the plaint that for the past 10 years only he could not cultivate his lands. As such there was no nexus between the laying of Nazareth road and the alleged inability on the part of the plaintiff to cultivate his land. The trial Court erred in fixing the quantum of compensation at Rs. 36,000/-. During rainy season, Kadambakulam Tank gets filled up and thereby it causes inundation in the nearby fields and there was no negligence on the part of the defendant. The respective land owners are expected to maintain and keep the private canals under proper repair. The damages awarded by the trial Court is excessive. Accordingly, the defendant/Government prayed for the dismissal of the original suit after setting aside the judgment and decree of the trial Court.
8. The points for consideration in this appeal are:
(i) Whether due to inaction on the part of the defendant/Government In maintaining sluice Nos. 12, 13, 14 and 15 of Srivaikundam Tenkal, Tamirabharani river, the plaintiff could not irrigate his land and thereby sustained damage?
(ii) Whether the trial Court properly assessed and awarded damages?
(iii) Whether the trial Court was justified in dismissing the prayer for mandatory injunction on the ground of limitation?
(iv) Whether there is any infirmity in the judgment and decree of the Court below?
9. Point Nos. 1 and 3 : Both sides argued the appeal on all the issues which were framed by the trial Court, even though the plaintiff has not filed any separate appeal as against the dismissal of the prayer for the relief of mandatory injunction, and also not filed any Cross-Objection disputing the quantum of damages awarded as inadequate.
10. Considering the true purport of Order 41, Rule 33, C.P.C. and in the facts and circumstances of the case, it had become just and necessary to hear both sides on all the issues framed by the trial Court for which both sides agreed without any demur. This case involves human problem and it has to be approached sympathetically' cutting across the technicalities of law which are repeatedly held as handmaids of justice.
11. Ex. C. 1, the report of the Advocate-Commissioner and Ex. C. 2, the sketch prepared by him, would throw much light on the issue. Learned Advocate-Commissioner gave a vivid picture about the location of the sluices bearing Nos. 12, 13, 14 and 15 and the location of the lands, the existence of Nazareth road and other details. Sluice Nos. 14 and 15 which are proceeding from west towards east got stopped at Nazareth Kadayanodai road. However, Sluices bearing Nos. 12 and 13 are passing under the said road and are available for irrigation. Nanja lands including the plaintiffs land are situated almost to the east of the said road. The authorities responsible for laying the road should have been careful enough in making those Sluices bearing Nos. 14 and 15 to pass under the road and for which they should have made necessary provisions. But they failed to do so. Sluices should have been maintained properly by the defendant and they cannot be heard to contend that the agriculturists who are in need of irrigating their lands should on their own accord, make arrangements. It is crystal clear from the available evidence that for irrigating the lands situated to the east of the road, those four sluices were arranged but now it transpires Sluice Nos. 14 and 15 were completely, blocked by the said road. It is the duty of the defendant to provide all facilities for the agriculturists to irrigate their lands.
12. The trial Court even though gave a finding that those sluices were not maintained by the defendant properly, yet the prayer for mandatory injunction was dismissed on the sole ground that the suit was not filed within three years. Such a view taken by the trial Court is ex facie untenable for the various reasons cited infra.
13. Non-maintenance of the sluices is a continuing breach on the part of the Government and it cannot simply be stated that for more than three years if the Government refrains from clearing the sluices or make available the sluices for irrigation, then on that ground itself the Government should be exonerated from performing its duty towards agriculturists. The trial Court should not have viewed the matter in that way by applying the limitation theory. When a citizen approaches the Government for relief, the latter should not plead limitation. To the risk of repetition I would state that it is the duty of the Government to make facilities for irrigating the agricultural lands and simply because the Government was inactive for a few years it cannot be allowed to capitalise its own inaction and plead that the Government would not clear sluices or reconstruct sluices and help the agriculturists. It is therefore, crystal clear that the trial Court committed wrong in applying the limitation theory in the facts and circumstances of the case and in rejecting the prayer for mandatory injunction. Even from one other angle, the limitation point could be surmounted. The right of the plaintiff/agriculturist to get his land irrigated through the Government sluices, is a right relating to the immovable property and such a right would not get barred by lapse of three years. Section 2(6) of the Registration Act defines what is 'immovable property' and it is reproduced hereunder for ready reference.
2(6) 'immovable property' includes lands, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass;'
Section 3(26) of the General Clauses Act is reproduced hereunder for ready reference.
3(26) 'immovable property' shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth;
14. The above definitions would leave no doubt in the mind of the Court that right of an agriculturist to take water through these sluices, is an immovable property and in such a case the period of limitation for three years under any of the Articles including residuary Article 137 of the Limitation Act are not applicable. It is obvious that to enforce any right relating to immovable property, the period of limitation prescribed is 12 years under Article 65 of the Limitation Act. Furthermore applying the limitation theory in rejecting the prayer of an agriculturist who is trying to get direction as against the Government for providing him with irrigation facilities, is a wrong approach in matters of this case. It is therefore, just and necessary to mandate the Government to immediately take steps to restore the irrigation facilities to the plaintiff through the sluices concerned. Accordingly, Point No. 1 is decided.
15. Point No. 2 : Even though in the grounds of appeal it is found contended on the defendant's side that the award of damages of Rs. 36,000/- was on the higher side, no plausible arguments could be advanced by the learned Additional Government Pleader in support of such a contention. A perusal of the judgment of the trial Court, would show that the trial Court considering the oral evidence on both sides, at paragraph No. 15, held that the plaintiff sustained loss to the tune of 80 Kottais of paddy per harvest and accordingly for one year, for two harvests the loss was to the tune of 160 kottais of paddy. P. W. 1, the plaintiff in his evidence would assert in concinnity with his averments in the plaint and contend that he sustained a loss at the rate of 80 kottais of paddy in every harvest. He would also explain and expound, delineate and narrate, put forth and project the fact that for one 'Kurini' i.e. 8 cents of land he would get one kottai of paddy. During cross-examination his assertion was not in any way torpedoed. Furthermore, for 7 acres and odd of his property the kottais of paddy that is the quantum of loss of paddy as claimed by him, cannot be found fault with. Even though P. W. 1 asserted that at the relevant point of time paddy was sold for a sum of Rs. 400/- per Kottai, yet in the plaint he averred that it was sold at the rate of Rs. 200 to Rs. 420/-. The trial Court thought fit to arrive at the rate of Rs. 100/- per kottai and accordingly held that the total damage awardable was Rs. 36,000/-. In fact,(the trial Court for three years anterior to the filing of the suit, held that there was loss at the rate of Rs. 100/- per Kottai of paddy and for three years the quantum amounts to 360 kottais and at the rate of Rs. 100/- per Kottai, a sum of Rs. 36,000/- was awarded:. In the absence of any clinching evidence produced by the plaintiff relating to the rate per Kottai, the trial Court cannot be found fault with and the finding of the trial Court relating to the quantum of damages, could be confirmed.
16. Point Nos. 3 and 4 : In view of the reasons given for deciding the aforesaid points, the judgment and decree of the trial Court has to be modified as under:
The Appeal is partly allowed; judgment and decree of the trial court relating to the award of damages is confirmed. However, the dismissal of the prayer for mandatory injunction, is set aside and the defendants are directed to maintain sluice Nos. 12, 13, 14 and 15 in a proper condition and keep them always in good repair. Within six months from this date such remedial measure be undertaken and finished and in the event of failure, the defendant should be liable for contempt of Court and the plaintiffs are entitled to approach the trial Court for obtaining further orders to get such orders implemented and the trial Court would be fully competent to pass such orders as it might deem it fit and proper for implementing the mandatory injunction. The defendant shall pay the costs to the plaintiff throughout.