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2004 DIGILAW 224 (HP)

State Of Himachal Pradesh v. Rattan Singh

2004-09-15

M.R.VERMA

body2004
JUDGMENT : M.R. Verma, J. This Second Appeal has been preferred by the appellant-defendant-State (hereafter referred to as ‘the defendant') against the judgment and decree dated 9.7.2001, passed by the learned District Judge, Sirmour District at Nahan whereby he has set aside the judgment and decree dated 7.3.2000 passed by the learned Sub Judge, Nahan dismissing the suit of the respondent-plaintiffs (hereafter referred to as the plaintiffs') and has passed a decree for Rs. 33,742/- in favour of the plaintiffs. 2. Brief facts leading to the filing of the present appeal are that the plaintiffs instituted a suit for damages in the sum of Rs.1 lac against the defendant. The case of the plaintiffs as made out in the plaint is that they are owners in possession of land comprising Khasra Nos. 185 and 1558/177 min, respectively measuring 1-7 and 1-10 bighas. Land comprising Khasra No. 185 is Othal Abbal and the remaining land is gairmumkin wherein Khair, Shishum, Kachnar and Dudla trees had been planted. Apart from these trees, there are fruit bearing plants viz.20 lemon plants, 10 Anjhir plants and 4 Mango plants. One Watermill also existed on the suit land. In the month of August, 1995, the Public Works Department while removing debris from Paonta-Shillai road threw it into the suit land thereby damaged the suit land, fruit bearing trees, non-fruit bearing trees and the Watermill thereby causing a loss of Rs.1 lac to the plaintiffs. The plaintiffs demanded the aforesaid amount and served the defendant with a notice under Section 80, CPC, but of no avail. Hence, the suit. 3. The defendant contested the suit. In its written statement, it raised the preliminary objections that the suit is not maintainable, that there is no enforceable cause of action in favour of the plaintiffs, that the suit is time barred, that the plaintiffs have no locus standi to institute the suit and that the suit is not properly valued for the purposes of court fee and jurisdiction. On merits, the existence of any kind of trees on the suit land has been denied and it has been claimed that in August, 1995 during rainy season "huge slip came much behind the acquired width of the road due to natural calamities" and "slipped down the land of the plaintiffs in the normal course". On merits, the existence of any kind of trees on the suit land has been denied and it has been claimed that in August, 1995 during rainy season "huge slip came much behind the acquired width of the road due to natural calamities" and "slipped down the land of the plaintiffs in the normal course". Thus, the damage to the land of the plaintiffs was caused by natural calamities and the debris was not thrown by Public Works Department over the suit land. Hence, the claim of the plaintiff has been denied. 4. The plaintiffs filed replication wherein the grounds of defence as taken in the written statement has been denied and the claim as made out in the plaint has been reiterated. 5. On the pleadings of the parties, the trial court framed the following issues:- 1. Whether the plaintiffs are entitled for damages of Rs. 1,00,000/- as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiffs has no cause of action and locus standi to file the suit? OPD 4. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 5. Relief. 6. On appreciation of the evidence led by the parties, the trial court decided Issue No.1 against the plaintiffs whereas Issue Nos. 2, 3 and 4 were answered in the negative as these were not pressed. As a consequence of the decision on Issue No. 1, the trial Court dismissed the suit of the plaintiffs. 7. Feeling aggrieved, the plaintiff preferred an appeal in the Court of the learned District Judge who allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit of the plaintiffs for Rs. 33,742/-. 8. Aggrieved defendant has preferred the present appeal which has been admitted for hearing on the following substantial question of law: "Whether the first appellate court has misread and mis-appreciated the oral and documentary evidence on record, more specifically, Exs. PW-2/A and PW-3/A to award damages to the respondents/plaintiffs?" 9. I have heard the learned Deputy Advocate General of the defendant and the learned counsel for the plaintiff and have also gone through the records. 10. PW-2/A and PW-3/A to award damages to the respondents/plaintiffs?" 9. I have heard the learned Deputy Advocate General of the defendant and the learned counsel for the plaintiff and have also gone through the records. 10. The question as to whether the debris came over the suit land because of natural calamity or it was thrown by the workmen of the defendant, is a question of fact. The lower Appellate court has, on the basis of the evidence on record, held that it was the labourers engaged by the Public Works Department who threw the debris from the road into the suit land thereby causing damage to the suit land including the trees and the Watermill, PW-1 fully supported the plaintiffs version. Bhadru (PW-4) who is working as a Mate with the Public Works Department corroborates the statement of PW-1. He has stated that in the year 1994 there was a landslide at Ashyadi Baas whereby the road was closed. To clear the road, 11. labourers under his Mateship were deployed. Some of the debris was adjusted on the road itself and the remaining debris was thrown down into the land of the plaintiffs whereby the cultivated land, trees and Watermill of the plaintiffs were damaged. He has further stated that the plaintiffs had objected to the throwing of debris into their land but the SDO concerned had told that road had to be cleared and they would be compensated for the damage. He has further stated that the land of the plaintiffs has not yet been cleared of the debris. Apparently there is no reason of for this witness, a workman of the defendant, to have falsely supported the claim of the plaintiff. His statement regarding damage caused because of the debris is supported by Kanshi Ram Patwari (PW-3) who assessed the damage after vesting the spot. There is no consistent and cogent rebuttal evidence. On the contrary, it is admitted case that debris had fallen on the suit land. Therefore, the findings in this regard as recorded by the lower Appellate Court cannot be said to be perverse or based on no evidence and, thus calls for no interference. 12. The grievance of the defendant is that Exts. PW-2/A and PW-3/A have not been properly appreciated by the lower Appellate Court. Ext. PW-2/A is Takmina Paidawar issued by a public servant on the basis of the public record. 12. The grievance of the defendant is that Exts. PW-2/A and PW-3/A have not been properly appreciated by the lower Appellate Court. Ext. PW-2/A is Takmina Paidawar issued by a public servant on the basis of the public record. As per Ext.PW-2/A the income from the cultivate land in suit has been assessed for the last 7 years produce at Rs. 67,068/-. It is not the case of the defendant that this Takmina Paidwar has not been prepared as per the standards laid down by the defendant itself. Similarly, Ext. PW-3/A assesses the damage caused because of the debris on the suit land. As per Ext. PW-3/A, the agricultural loss for seven years has been worked out in the sum of Rs. 67,068/- and annual loss because of the damage to the fruit bearing trees has been assessed at Rs. 4,000/- and the damage to the Watermill has been assessed at Rs. 5,000/-. The lower Appellate Court while assessing the damage caused for the relevant three years for which the claim was found within limitation has assessed the damages on the basis of the average damages per year and has, thus, correctly arrived at a sum of Rs. 28,742/- as damages for three years of agricultural income from the suit land. For the loss occasioned because of the damage to the Watermill he has awarded the damages in the sum of Rs. 5,000/- as per assessment vide Ext.PW-3/A. The lower Appellate Court appears to have ignored the claim for compensation on account of the damage caused at the rate of Rs. 4,000/- per annum to the plaintiffs because of the damage caused to the fruit bearing trees. This non-calculation is to the disadvantage of the plaintiffs and relieves the defendant of liability to pay compensation on account of damage caused to the fruit bearing trees. Thus, the lower Appellate Court has not committed any mistake in appreciating Exts.PW-2/A and PW-3/A which may be prejudicial to the interest of the defendant. 13. In view of the above, it cannot be said that the lower Appellate Court has misread and mis-appreciated the oral and documentary evidence so as to come to perverse and unjust conclusions. Thus, there is no merit and substance in the present appeal. 14. As result, this appeal is dismissed with costs.