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2018 DIGILAW 1959 (HP)

Sewa Dassi v. Gopal Singh (now Deceased) Through Legal Representatives Nain Kali Alias Padam Pati

2018-11-12

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The plaintiff is the appellant, who filed the suit for recovery of Rs.5,00,000/- on account of damages caused to her property while constructing "Ganvi-Labana Sadana Link Road" by the defendants, was dismissed by both the learned Courts below, has filed the instant appeal. The parties shall be referred to as the plaintiff and the defendants. 2. It was averred that the plaintiff/appellant was a co-sharer of land comprised in Khata/Khatauni No.175/511, Khasra No. 627, measuring 0-20-06, situated at Muhal Ganvi, Pargana 15/20, Tehsil Rampur Bushehar, District Shimla, H.P.(hereinafter referred to as the suit land). The plaintiff had raised an orchard and also constructed a kucha house as well as cow shed over it. However, the defendants No.1 and 2, who were contractors while constructing the aforesaid road caused damaged to her apple trees, hence the suit. 3. The defendants contested the suit by raising various preliminary objections regarding limitation, maintainability of the suit, estoppel, cause of action, improper valuation, concealment of facts etc. On merits, it was averred that the suit land was classified as Banjar Kadim in the revenue record and maximum portion thereof was rocky and not an orchard as alleged. It was also averred that the plaintiff had constructed any kucha house or cow-shed over the same. However, it was fairly conceded that on account of some damages being caused to the plaintiff''s property, the defendants had not only constructed RCC house for the plaintiff but had also paid a sum of Rs. 17500/- to her and over and above this amount, the plaintiff was not entitled to any damages whatsoever. 4. The learned trial Court on 20.07.2012, framed the following issues: 1. Whether the plaintiff is entitled for decree of recovery of Rs.5,00,000/- and interest @ 9% per annum, as alleged? OPP 2. Whether the suit of the plaintiff is time barred, as alleged? OPD 3. Whether the plaintiff is estopped to institute the present suit by its own act, conduct and omission? OPD 4. Whether there is no cause of action in favour of the plaintiff? OPD 5. Whether the plaintiff has not come to the court with clean hands and has concealed material true facts? OPD 6. Relief. 5. OPD 3. Whether the plaintiff is estopped to institute the present suit by its own act, conduct and omission? OPD 4. Whether there is no cause of action in favour of the plaintiff? OPD 5. Whether the plaintiff has not come to the court with clean hands and has concealed material true facts? OPD 6. Relief. 5. After recording the evidence and evaluating the same, the suit filed by the plaintiff came to be dismissed by the learned trial Court and the appeal preferred against the same was also dismissed by the learned appellate Court vide its judgment and decree dated 27.3.2018, constraining the appellant to file the instant appeal. 6. At the out-set, it needs to be observed that the road in question was constructed in the year 2006 and completed by the year 2007. The suit came to be filed only on 04.05.2010 and was therefore prima-facie barred by limitation and ought to have been dismissed at the threshold. 7. Now, adverting to the merits of the case, it would be noticed that the plaintiff has virtually led no evidence to prove that the damage over and above for which she has already been compensated by the defendants by making the aforesaid payment. 8. The findings recorded by the leaned Courts below are pure findings of fact which are immune from challenge in second appeal. In addition to the above, it would be noticed that the present appeal was filed through legal aid and this Court on 30.7.2018 had directed the Superintending Engineer, HPPWD, Rampur Circle to visit the spot and report about the damages, if any, caused to the property of the appellant that may have been caused at the time of construction of the road. Even in this report, it has categorically been found that only minor losses were suffered by the plaintiff/appellant during the construction of the road and for that she had already been adequately compensated. 9. In such circumstances, no question of law much less substantial question of law arises for consideration in this appeal. 10. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.