Duk Nath Nepal v. Chandra Shekhar Nepal

Judgment

#4. District Collector, District Administrative Center, Gangtok, East Sikkim.

#5. The Sub-Divisional Magistrate, District Administrative Center, Gangtok, East Sikkim. ….. Respondents 2 R.F.A. No. 1 of 2020 Duk Nath Nepal vs. Chandra Shekhar Nepal and Others Appeal under Section 96 read with Order XLI rule 1 and 2 of the Code of Civil Procedure, 1908.

---------------------------------------------------------------------------- Appearance: Mr. S.S. Hamal, Advocate with Ms Priyanka Chettri, Advocate, for the Appellant. Mr. A. K. Upadhyaya, Senior Advocate with Ms Gita Bista, Legal Aid Counsel and Ms. Rachhitta Rai, Advocate, for the respondent no. 1. Dr. Doma T. Bhutia, Additional Advocate General with Mr. S.K. Chettri, Government Advocate for the respondents no. 2 to 5. ----------------------------------------------------------------------------- Date of hearing : 07.04.2022 Date of judgment: 20.04.2022 J U D G M E N T Bhaskar Raj Pradhan, J.

#1. The present appeal assails the impugned order dated

28.08.2019 passed by the learned District Judge, Special Division-I, East Sikkim at Gangtok in Title Suit No. 15 of 2018 allowing an application (the application ) under order VII Rule 11 read with section 151 of the Code of Civil Procedure Code, 1908 (CPC) rejecting the plaint.

#2. The appellant had filed a suit under section 9 and 16(e) read with section 151 CPC seeking the following reliefs:- a. A decree declaring to pay compensation of amount of ₹14,80,000/- (Rupees fourteen lakhs eighty thousand only) by the Defendant Nos.1, 2 and 3 to the Plaintiff, along with the interest of 5% per month from the date of filing till the date of disposal, 3 R.F.A. No. 1 of 2020 Duk Nath Nepal vs. Chandra Shekhar Nepal and Others b. A decree declaring that the said old canal is an ancestral canal, c. A decree declaring to open/restore the old canal by the Defendant No.1 being an easementary right, d. Pass such necessary order and orders of reliefs to which the Plaintiff is entitled to in law and in equity according to law in the interest of justice.

#3. The appellant had stated in the plaint that in the end of year 2011, the respondent no.1 - a local contractor, blocked the generation old irrigation canal stating that the respondent no.3 had sanctioned an irrigation canal. The appellant further pleaded that since 2011 till the filing of the suit there was no such construction due to which the appellant’s paddy field turned into uncultivable land making the appellants suffer a loss of ₹1.5 lakhs a year.

#4. The records reveal that on 31.12.2018 the respondent no.1 filed the application which was ultimately allowed by the impugned order.

#5. The learned District Judge held that there is no specific article in the Limitation Act, 1963 which deals with suit for declaration of right to use canal or waterways and hence, such a declaration would be covered by Article 58 thereof. The learned District Judge examined Article 85 of the Limitation Act, 1963 which provides that for a suit claiming compensation for obstructing a way or a water course the limitation prescribed is 4 R.F.A. No. 1 of 2020 Duk Nath Nepal vs. Chandra Shekhar Nepal and Others three years from the date of obstruction. The learned District Judge also examined Article 86 of the Limitation Act, 1963 which provides that for a suit claiming compensation for diverting a water course the limitation prescribed is three years from the date of diversion. It was held that the period of limitation started running immediately from the date the right to sue accrued, i.e., the date of obstruction or diversion of the canal by the respondent no.1. The learned District Judge held that the suit filed by the appellant was barred by the law of limitation.

#6. Mr. S.S. Hamal, learned counsel for the appellant, submitted that the impugned judgment was not correct in holding so since the appellant was claiming a contractual right or an implied promise as would be evident from the information provided by the respondent no.3 dated 30.2.2016 (annexure-5). He therefore submits that Article 55 of the Limitation Act, 1963 dealing with compensation for breach of any contract, express or implied not specifically provided for would be the appropriate article. He also relied upon the judgments of Supreme Court in Dahiben vs. Arvindbhai Kalyanji Bhanusali1 and the Church of Christ Charitable Trust & Educational Charitable Society vs. M/s Ponniamman Educational Trust2. The learned counsel also relied upon a judgment upon this court in Ms Dinku Khati and Another vs. Smt. Kamal Kumari Subba and Another3. The facts in the present