JUDGMENT : 1. By way of instant appeal, appellants have assailed judgment and decree dated 14.8.2008, passed by learned District Judge, Mandi, Himachal Pradesh, in Civil Suit No. 12 of 2005, whereby the suit of the appellants has been dismissed. 2. Parties herein are referred by the same status, as they held before the learned trial Court. The appellants were plaintiffs and the respondents were the defendants. 3. Plaintiffs filed suit for recovery of Rs. 10,00,000/- as compensation on account of damage caused to their house, comprised inland bearing khata No. 178 min., khatauni No. 219 min, Khasra No. 1263/245, measuring 1-11-13 bighas, situated at mauja Nagwain, Tehsil Sadar, District Mandi, H.P. (Hereinafter referred to as suit property).As per averments made in the plaint, defendants were owners of land comprised in khata No. 227, khatauni No. 273, Khasra No. 1278/243, measuring 1-16-15 bighas in the same revenue village. In fact, the suit property and land of defendants were contiguous, having common boundary. 4. Plaintiffs averred in the plaint that in 2004 defendants started unscientific digging of a water-well in Khasra No. 1278/243, which started causing damage to their house. As per plaintiffs, the well was being dug at a distance of 14-15 feet from their house, whereas the defendants had sufficient land for the purpose. The land strata was stated to be sand mixture and black clay. It was alleged the digging work of defendants disturbed the land towards their house and caused its sinking. Plaintiffs filed Civil Suit 48/2004 against defendants for permanent prohibitory injunction. Despite grant of interim injunction in favour of plaintiffs, defendants continued to dig the well, which aggravated the damage to the house of plaintiffs. It developed cracks and became inhabitable. Though, the damage caused to the house of plaintiffs was estimated at Rs. 17,50,000/- but the plaintiffs filed a suit for recovery of Rs. 10,00,000/- only by restricting their claim. 5. Defendants contested the suit. It was submitted that the house of the plaintiffs was constructed with stones and mud mortar masonry. There was no damage to the house of plaintiffs due to digging of well by defendants. The well was stated to have been dug in scientific manner by placing RCC rings inside the well. It was specifically averred that the house of the plaintiffs was not constructed with proper specifications. There was no damage to the house of plaintiffs due to digging of well by defendants. The well was stated to have been dug in scientific manner by placing RCC rings inside the well. It was specifically averred that the house of the plaintiffs was not constructed with proper specifications. The cracks in the house of plaintiffs had developed prior to the digging of well by the defendants. The plaintiffs were further accused of having no proper drainage to their house. It was also submitted that the well of defendants was far away from the house of plaintiffs. In entire village Nagwain, most of the people had constructed their own water wells. 6. On the basis of pleadings of the parties, following issues were framed: - 1. Whether the plaintiffs are entitled for recovery of damages for the amount of Rs. 10,00,000/-, as alleged? OPP. 2. Whether the suit is not legally maintainable? OPD. 3. Whether the plaintiffs have no cause of action to file the suit? OPD. 4. Whether the suit is not maintainable under Order 2 Rule 2 CPC and suit is liable to be stayed under Section 10 CPC. 5. Relief. 7. Plaintiffs examined nine witnesses, whereas defendants examined five witnesses. A number of documents also were proved by either side as per their respective cases. On conclusion of trial, learned trial Court decided issue No.1 in negative. Issues No. 2 and 3 were decided in affirmative and issue No.4 was decided partly in affirmative. Suit of the plaintiffs was accordingly dismissed. 8. I have heard learned counsel for the parties and have also gone through the records carefully. 9. Learned counsel for the appellant contended that the plaintiffs had proved expert reports Ext. P-3, Ext. PW-7/A to Ext. PW-7/F and also site inspection report Ext. P-8. In addition, they had also examined PW-3 and PW-7 as expert witnesses and the entire said evidence proved that the loss suffered by plaintiffs to their house was solely on account for unscientific digging of well by defendants. He also contended that the impugned judgment and decree is result of complete mis-appreciation and misreading of evidence. It was also duly proved that cracks had appeared in the house of the plaintiffs only after digging of well by the defendants. In this regard, reliance has been placed on the statements of PW-3, PW-5 and PW-6 and PW-9. 10. He also contended that the impugned judgment and decree is result of complete mis-appreciation and misreading of evidence. It was also duly proved that cracks had appeared in the house of the plaintiffs only after digging of well by the defendants. In this regard, reliance has been placed on the statements of PW-3, PW-5 and PW-6 and PW-9. 10. On the contrary, learned counsel for the defendants has supported the impugned judgment and decree. It has been contended that the plaintiffs had miserably failed to prove their case, whereas the defendants had led trustworthy and cogent evidence. The expert witness of defendants, DW-2 and DW-3 had duly proved that the well was dug by defendants in scientific manner and the cracks in the house of plaintiffs were not due to the digging. He further asserted that the land underneath the house of plaintiffs was proved to be water logged with clay soil. In such kind of land, the mud mortar houses were likely to develop cracks on account of settlement of plinth. 11. Plaintiffs have based their claim on tortious liability which arises from breach of duty imposed by law. The legal requirement to succeed in such claim would be to prove breach of legal duty by defendants. They owed a duty towards plaintiffs that no loss was caused to their property on account of digging of well. Defendants were under obligation to take all due care to prevent such loss. As a necessary corollary the plaintiffs were required to prove the negligence or lack of due care in the conduct of defendants and sufferance of consequent loss by plaintiffs. The plaintiffs had pleaded in the plaint that defendants had indulged in reckless digging in unscientific manner, which caused the settlement of land and consequent damage to the house of plaintiffs. 12. First question would be whether plaintiffs had succeeded in proving that the cracks in their house had appeared after digging of well? 13. Plaintiff No.1 appeared as his own witness and stated that the cracks had developed in his house due to digging of well by defendants and prior to that there were no cracks. PW-5 Smt. Savitri Devi has also deposed to this effect. She stated that she had not seen cracks in the walls of house of the plaintiffs earlier. Further, PW-9 also corroborated plaintiff and PW-5 on this fact. PW-5 Smt. Savitri Devi has also deposed to this effect. She stated that she had not seen cracks in the walls of house of the plaintiffs earlier. Further, PW-9 also corroborated plaintiff and PW-5 on this fact. The defendants could not prove the contrary. Thus, this fact can be stated to have been proved y plaintiffs. 14. Now the second question arises whether the cracks in the house of plaintiffs were result of digging of well by defendants? 15. There is no dispute that the water-well dug by the defendants was in their own land. The distance between house of plaintiffs and the well has been found to be approximately 15-20 feet. No presumption can be drawn from the mere fact of appearance of cracks in the walls of house of plaintiffs that such damage was due to digging of well. The onus was on plaintiffs to prove such fact. 16. In order to prove the technical aspect of the matter, plaintiffs examined PW-3 Rajender Kumar as their witness. He simply proved on record the factum of spot inspection carried by him on 20.3.2005 and preparation of report Ext.P-3. As per this witness, he was posted as Junior Engineer in Agriculture Department for the last fifteen years. A glance at report Ext. P- 3 reveals that the spot was visited by PW-3 in pursuance to the order passed by Court in Civil Suit 48/2004. It was observed that plaintiffs had constructed their house with local specifications and cracks had appeared. The soil underneath the house of plaintiffs was found to be sandy soil mixed with black clay having no stability due to water logging in the area. The report also mentioned that on inquiry and observation, the cracks in the house of plaintiffs were found to have appeared recently. The foundation of the house was found to have settled due to loose soil after digging for construction of water well by defendants. 17. In cross-examination, this witness admitted that he had not ascertained the depth of foundation of the house of plaintiffs. He admitted that in water logged area, if the foundations are not properly laid, cracks can develop in the walls. He further stated that he had not recorded any statement of the persons from whom he had made inquiries. 17. In cross-examination, this witness admitted that he had not ascertained the depth of foundation of the house of plaintiffs. He admitted that in water logged area, if the foundations are not properly laid, cracks can develop in the walls. He further stated that he had not recorded any statement of the persons from whom he had made inquiries. He further admitted that the house of plaintiffs was situated adjacent to National Highway and cracks could develop due to vibrations also. 18. Plaintiffs examined another witness as expert. PW-7 Tej Ram Rana deposed that he inspected the site. He took measurement and obtained data on the basis of which, he prepared details of estimate, sanctioned plan, elevations and site plan etc. He identified said documents as PW-7/A to PW- 7/F. As per this witness, when he visited the spot, the digging work of well was complete. In cross-examination, he submitted that he had not taken any specific training for assessing the age of buildings. He has also disclosed in cross-examination that he had diploma in Civil Engineering and was an Architect. He also admitted that the land of plaintiffs was water logged. He feigned ignorance that defendants had placed RCC rings inside the well. 19. A witness can be termed as an expert on the basis of his qualification and experience. PWs 3 and 7 did not depose about their qualification and experience and its relevance to the subject on which they were deposing. In cross examination of PW-7, on one hand he stated himself to be a diploma holder in Civil Engineering and on the other he claimed himself to be an Architect. In view of such material on record none of them could be said to be experts and in such circumstances, it would not be safe to rely upon their opinion. Report Ext. P-3 had not pin pointed the cause of damage to the house of plaintiffs. Similarly, there is no specific report of PW-7. Since PW-3 and PW-7 were examined as expert witnesses they were required to base their opinion on some scientific/technical data, which they failed. 20. The plaintiffs could prove their case only on the basis of the evidence of experts. As stated above, the expert evidence of plaintiffs was not convincing. Report Ext. Similarly, there is no specific report of PW-7. Since PW-3 and PW-7 were examined as expert witnesses they were required to base their opinion on some scientific/technical data, which they failed. 20. The plaintiffs could prove their case only on the basis of the evidence of experts. As stated above, the expert evidence of plaintiffs was not convincing. Report Ext. P-3 clearly mentioned that the house of plaintiffs was in water logged land having sandy and black clay, which has no stability. He admitted in cross-examination that in such type of strata the settlement of house was possible and cracks could be result of such settlement. PW-3 has not been able to justify as to on what basis he had found the cracks to be of recent origin. There is no mention in the report that what was the source of his opinion. Taking overall view of the evidence, produced by plaintiffs, it cannot be categorically held that the cracks had appeared in the house of plaintiffs due to digging of well by defendants. 21. In addition, there was no evidence of plaintiffs to suggest that the land on which the well was dug was not fit for the purpose. On the contrary, it had been proved on record that most of the houses in the village had their own wells. The evidence also suggested that there was a difference of 15-20 feet between the house of plaintiff and the disputed well. The plaintiff while appearing as PW-1 had even admitted that even prior to digging of new well the defendants had their old well almost at the same place. Further there was also no evidence to suggest that the well was not dug in the manner, it should have been. In nut-shell, it was not proved that while digging the well, defendants were negligent or had not taken due care. The evidence on record rather suggested that the defendants had placed RCC rings inside the well while carrying out the digging process. 22. Since the plaintiffs failed to prove that the damage to their house was caused due to digging of well, their estimates of loss lost relevance. 23. Other witnesses examined by the plaintiffs were office bearers of Panchayat or revenue officials. Their testimonies could not render much help to the cause of plaintiffs in view of nature of fact in issue. 24. 23. Other witnesses examined by the plaintiffs were office bearers of Panchayat or revenue officials. Their testimonies could not render much help to the cause of plaintiffs in view of nature of fact in issue. 24. In view of material on record, there is no difficulty to hold that plaintiffs had failed to discharge necessary burden. Learned trial Court after detailed appreciation of entire evidence had concluded that the plaintiffs had failed to prove their case. No fault can be found with the findings of fact recorded by learned trial Court. The findings recorded by the learned trial Court are borne out from the evidence on record and cannot be said to be perverse. 25. In view of above discussion, there is no merit in the appeal and the same is accordingly dismissed, with no orders as to costs. Pending applications, if any, also stand disposed of. Records of the learned trial court below be returned forthwith.