IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 AS.No. 475 of 1995(D) --------------------- OS.57/1992 of PRINCIPAL SUB COURT,ALAPPUZHA .................... APPELLANT(S): 1. BLOCK DEVELOPMENT OFFICER, BLOCK DEVELOPMENT OFFICE, CHAMBAKULAM. 2. KERALA STATE REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA. BY GOVERNMENT PLEADER RESPONDENT(S): 1. C.V.JOSEPH, SON OF VARKEY, NARAKATH PUTHENPURAKKAL, CHABOTHARA, NADUBHAGAM, CHAMBAKULAM. 2. FR.PETER, CMI GAGATHA ASHRAM, CHAMBAKULAM. 3. JOSEPH VARGHESE KUNNIL FROM PAKKERIL, ANICHAKARI, CHAMBAKULAM. 4. M.B.KURIAN, MALAYAPURAM, AMICHAKARI, CHAMBAKULAM. ADV. SRI.ASP.KURUP SRI.K.N.VENUGOPALA PANICKER THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = A.S.No.475 of 1995 = = = = = = = = = = = = = = Dated this the 23 rd day of June, 2009 JUDGMENT Defendants 4 and 5 in O.S.No.57 of 1992 on the file of the Principal Sub Court, Alappuzha are the appellants in this appeal. They are the Block Development Officer, Chambakulam and the State of Kerala represented by the District Collector, Alappuzha. 2. The aforesaid suit instituted by the 1st respondent herein was one for realisation of Rs.2 lakhs from the five defendants jointly and severally as compensation for the loss and damage sustained by the plaintiff and also for consequential relief. 3. The case of the plaintiff can be summarised as follows:- The plaintiff is the absolute owner in possession of 10 cents of property comprised in Survey No.291/3A of Champakulam village together with the building which was A.S.No.475 of 1995 2 in existence thereon. The said property was purchased by the plaintiff as per registered Sale Deed dated 8.9.75 (document No. 1924 of 75 of Sub Registry Office, Ambalapuzha). The State of Kerala under its Scheme for construction of a public road from the Alappuzha- Changanassery road at Mankombu to Chambakulam Government Hospital, constructed a road through the eastern boundary of the plaintiff's property. The land for construction of the road was provided by the adjoining owners on either side for a width of 10 feet by free surrender. The plaintiff had also surrendered a strip of land 10 feet wide on the eastern boundary of the aforesaid property for the construction of the road. The said road ends in the Chambakulam Government Hospital which is about 200 meters to the south of the plaintiff's property. The 1st defendant Fr. Peter was a Government nominee for the construction of the road. The 2nd defendant Joseph Varghese was the treasurer and the 3rd defendant A.S.No.475 of 1995 3 M.P.Kurian was the convener for the construction of the road. The road was constructed by defendants 1 to 3 under defendants 4 and 5 who are the Block Development Officer, Chambakulam and the State of Kerala. On the northern side of the plaintiff's property there is a canal running east- west . A bridge was constructed across the canal along the aforementioned road. The said bridge adjoins the property of the plaintiff at its northern side. The bridge was constructed at a very high level from the road level. At the time of construction of the bridge, the defendants had agreed to construct a retaining wall on the western slop of the southern approach to the bridge so as to avoid the falling of earth and gravel to the plaintiff's property and the building situated thereon from the higher level. However, while constructing the road the defendants and their workers rashly, negligently and recklessly unloaded lorry loads of gravel into the plaintiff's property upto a hight of 5 feet from the ground level. By the heavy fall of gravel and A.S.No.475 of 1995 4 its weight the building in the property belonging to the plaintiff was sevearly damaged and it has now completely collapsed and fallen down. The building was a strong one in which a toddy shop was run. As a result of the rash and negligent act of the defendants and their workers the said building has been completely damaged. The plaintiff has sustained a loss of more than 2 lakhs on account of the same. The length of the building was 13.6 meters and width was 4 meters with a hight of 2 meters. It was constructed with bricks and tiles and cement and its foundation was granite. The defendants are jointly and severally liable to compensate the plaintiff for the loss of Rs. 2 lakhs. In O.S.No.393 of 1987 filed by the plaintiff before the Munsiff's Court, Alappuzha there is already a decree for mandatory injunction directing defendants 4 and 5 to construct a retaining wall on the western side of the bridge adjacent to the property of the plaintiff so as to avoid slip of earth and gravel into the property of the plaintiff. Hence the suit. A.S.No.475 of 1995 5 4. The suit was resisted by the appellants (D4 and D5) contending inter alia as follows:- The suit is not maintainable either in law or on facts. The plaint allegations are not fully correct and are hence denied. A road was constructed under the NREP Scheme from the Alappuzha- Changanassery road at Mankombu to Chambakulam Government Hospital about 5 years ago through the properties of numerous persons including the plaintiff. The width of the road is 8 meters . The plaintiff had given consent in writing for surrender of land from his property for the construction of the said road. The property of the plaintiff is situated around 300 meters to the north of the Government Hospital, Champakulam. The 1st defendant is not a Government nominee as alleged. He was selected by the beneficiaries after convening a public meeting . No treasurer was selected for the purpose. The bridge referred to in para 4 of the plaint was constructed by the Minor Irrigation Wing of the P.W.D. These defendants have had A.S.No.475 of 1995 6 nothing to do with the construction of the said bridge. No agreement as allegedly was made with the plaintiff for the construction of a retaining wall during the execution of road work. A temporary building was situated near the culvert which was in a dilapidated condition. Due to lack of maintenance the said building collapsed and fell down. There was no provision in the estimate for the construction of a retaining wall. It was the plaintiffs who insisted on putting up a retaining wall at his own cost on the boundary of his own property. These defendantts have no responsibility for the loss, if any, sustained by the plaintiff. The road work was completed on 13.5.87. The loss, if any, sustained by the plaintiff is not due to any negligent act of these defendants who are not responsible for the same. The suit is barred by limitation and may be dismissed with costs . 5. On the side of the plaintiff three witnesses were examined as Pws1 to 3 of whom PW1 is the plaintiff himself, A.S.No.475 of 1995 7 PW2 is the Advocate Commissioner deputed by the trial court and PW3 is a neighbour. Exts.A1 to A16 were got marked. On the side of the defendants no oral evidence was adduced. Ext.B1 and B2 were got marked. 6. The learned Sub Judge, Alappuzha, as per judgment and decree dated 30.8.94, decreed the suit in part allowing the plaintiff to recover a sum of Rs.75,000/- from defendants 4 and 5. Hence this appeal. 6. I heard Sri.Benny Varghese, the learned Government Pleader who argued the appeal on behalf of the State and Advocate Sri.Sadajith Kurup, the learned counsel appearing for the 1st respondent-Plaintiff. 7. The learned Government Pleader made the following submissions before me in support of the appeal:- The case of the plaintiff is that while constructing the road in question, the workers of the defendants negligently and recklessly dumped lorry loads of gravel in the property of the plaintiff upto a height of 5 feet from the ground level A.S.No.475 of 1995 8 and on account of the stress, the building which was in the property collapsed and fell down as a result of which the plaintiff sustained a loss of Rs.2 lakhs. But according to the appellants the work of the road was completed in all respects by 30.9.87 and the building, which according to the Advocate Commissioner was a C class structure, collapsed not on account of the unloading of gravel but due to the lack of proper maintenance by the plaintiffs. Going by the testimony of PW1, the plaintiff himself, the entire work of the road was over by the end of 1986 and bus service along the newly constructed road started on 18.3.87. If by the end of 1986, the entire work of the road was over, there was no necessity for the State to unload gravel in the year 1987-88. Even in the year 1989 when the Advocate Commissioner -PW2, who submitted Exts.A12 and A14 reports, had inspected the property, the building in the property of the plaintiff had substantially collapsed and was not having any roof. If dumping of gravel was the A.S.No.475 of 1995 9 immediate reason for the collapse of the building, then the cause of action took place in December 1986 and therefore the suit filed in the year 1992 was barred by limitation. The evidence of the Advocate Commissioner examined as PW2 shows that the building was a dilapidated building. The Commissioner stated that for effecting repairs to the damaged building a sum of Rs.60,000/- would suffice and that, it is only if the building was to be reconstructed, it would cost at least Rs.1,60,000/-. In any view of the matter, the plaintiff who filed an earlier suit in the year 1987 as O.S.No.343 of 1987 as revealed by Ext.B1 judgment was precluded from filing the present suit in view of the principles of constructive res judicata under Explanation IV to Section 11 C.P.C and in view of Order II Rule 2 C.P.C The decree passed the court below, overlooking the above vital aspects of the matter, cannot be sustained. 8. I am afraid that I cannot agree with the above submissions made on behalf of the appellant. Ext.A15 is the A.S.No.475 of 1995 10 plan prepared by the Advocate Commissioner in the earlier suit (O.S.No.393 of 1987) between the same parties. The said plan was prepared with the assistance of the Taluk Surveyor. The Advocate Commissioner who submitted Ext.A15 plan and A14 report was examined in the present case as PW2. Plots A3 to A5 in Ext.A15 plan constitute the property belonging to the plaintiff and having a total extent of 20.100 cents. All the 3 plots are lying contiguous length- wise from north to south with a canal running east-west forming the common northern boundary of the aforesaid plots. Plot A4 lies to the east of plot A3 and plot A5 lies to the east of plot A4. There is no dispute that under a Government Scheme called the NREP Scheme, on the initiative of the Champakulam Block Development Office, a road was constructed southwards from the Alappuzha- Changanasseri road at Mankombu to the Champakulam Government Hospital on the south. After cutting across the canal forming the northern boundary of the plaintiff's A.S.No.475 of 1995 11 property the said road proceeded southwards through plot 5 referred above belonging to the plaintiff and admeasuring 3.600 cents to finally reach the Champakulam Government Hospital which is situated about 300 meters to the south of the plaintiff's property. The width of the road was 8 meters. Many of the property owners there including the plaintiff had offered 10 feet wide strip of land belonging to them by way of free surrender for the formation of the road. The property so surrendered by the plaintiff was towards the eastern extremity (Plot A5 in Ext.A15 plan) of his property. The said portion has an extent of 3 cents and 600 square links. A bridge was constructed across the canal referred to above and the said bridge forms the northern boundary of plot A5 referred to above. Since the bridge was constructed across the canal at a height of 2 meters the approach road on either ends of the bridge also had to be raised to the level of the bridge. There was building situated in plot A4 belonging to the plaintiff and abutting plot A5 through A.S.No.475 of 1995 12 which the newly formed road passes. The said building had a length of 18.6 meters north-south and a width of 4 meters and a height of 2 meters. It was made of bricks with tiled roof and was having a plinth area of 813 1/3 square feet. (See Ext.A14 report). Going by Ext.A16 certificate dated 10.2.1994 issued by the Executive Officer, Champakulam Panchayat the said building which was 10 years old was bearing Building No.427 in Ward No.1 of the said Panchayat and was assessed to building tax from the year 1983-84 onwards. For about 5 years a toddy shop was functioning in the said building. It has been the grievance of the plaintiff right from the starting of the construction of the bridge that if a retaining wall is not constructed on either side of the approach road proceeding towards the bridge to a height of 2 meters, there would be slip of earth and resultant damage to the plaintiff's property including the building thereon. According to the plaintiff, the officials who were in charge of the construction of the road had promised the plaintiff to A.S.No.475 of 1995 13 put up a retaining wall but they did not keep up their promise. This was denied by the defendants. However, the plaintiff filed a suit as O.S.No.393/1997 before the Munsiff's Court, Alappuzha, inter alia, for a mandatory injunction directing the defendants to construct a retaining wall. Eventhough the said suit was resisted tooth and nail by the defendants, the civil court as evidenced by Ext.B1 judgment dated 31.10.1990 decreed the plaintiff's suit directing the appellants herein to construct a retaining wall on the western side of the approach road facing the plaintiff's property. Actually, the construction of a retaining wall on either side of the approach road is a necessity in the interests of the defendants themselves. 9. The specific allegation in paragraph 4 of the plaint in this case is as follows:- There is a bridge in the said road across the canal on the northern side of the plaintiff's property. The bridge adjoin the property of the plaintiff in its north-eastern side. It is constructed very high from the road level. At the time of construction the defendants have agreed to A.S.No.475 of 1995 14 construct a retaining wall on the western slop of the southern approach to the bridge so as to avert falling of earth and gravel to the plaintiff's property and the building situated therein. While constructing the road the defendants and their workers working under them rashly, negligently and recklessly unloaded lorry full of gravel into the plaintiffs property and it fell upon the building of the plaintiff at least at the height of five feet from the ground level. By the fall of gravel and its weight the building was severely damaged and thereafter now it is completely collapsed and fell down. It was a strong building where a toddy shop was running. The building is totally collapsed as a result of the rash and negligent act of the defendant and its workers. As a result of the above said illegal and negligent act of the defendants the plaintiff sustained a loss of more than 2 lakhs. The building was a pukka building with 13.6 meters of length and 4 meters of width and 2 meters of height. It was constructed with bricks and tiles and cement with granite foundation. The defendants are jointly and severally bound to compensate the plaintiff for the said loss of Rs.2 lakhs sustained by the plaintiff. Except an omnibus denial of paragraph 4 of the plaint in paragraph 5 of the written statement of D4 and D5, there is no specific denial of the actual cause of damage to the building as alleged in paragraph 4 of the plaint. This means that the plaintiff's case that the building collapsed due to A.S.No.475 of 1995 15 unloading of lorry loads of gravel upto a height of 5 feet on to the eastern wall of the building stands virtually admitted. It is pertinent to note that the appellants have not attributed any convincing reason for the collapse of the plaintiff's building which was a pukka construction in bricks with tiled roof and where a toddy shop was formerly run. The appellants would further contend that it was for the plaintiff to construct a retaining wall to protect his property and that there was no promise on the part of the defendants to put up a retaining wall. The said stand is belied by Ext.B1 judgment which has become final. In spite of Ext.B1 judgment, the fact remains that the retaining wall has not been constructed even now and this must have contributed to the damage of the building. In paragraph 13 of the impugned judgment, the trial court has relied on Ext.A11 mahazar and Ext.A12 report submitted by PW2, the Advocate Commissioner to accept the plaintiff's case that the building collapsed as a result of negligent dumping of A.S.No.475 of 1995 16 lorry loads of gravel onto the property. As against the oral testimony of the plaintiff examined as PW1 and a neighbour examined as PW3, none of the defendants mounted the witness box to substantiate their case of denial in the written statement. 10. The defence of constructive res judicata and bar of Order II Rule 2 C.P.C to the suit claim is misconceived. The earlier suit O.S.No.393 of 1987 was filed by the plaintiff consequent on the breach of promise by the defendants to construct a retaining wall. That suit was decreed on 31.10.1990 (Ext.B1 judgment) after overruling the contentions of the defendant. But collapse of the building took place in the year 1991. So, the present claim for damages for the collapse of the building could not have been made in the earlier suit. The bar of suit under Order II Rule 2 C.P.C also is not attracted since the cause of action for the earlier suit was the failure on the part of the appellants to construct the retaining wall whereas the cause of action for A.S.No.475 of 1995 17 the present suit is the collapse of the building. 11. The claim made by the plaintiff was Rs.2,00,000/-. The commissioner's assessment was Rs.1,22,000/-. The court below has awarded Rs.75,000/-. If at all the court below has gone wrong that was on the side of lower side. In the facts and circumstances of the case, I see no reason to interfere with the judgment and decree passed by the court below. This appeal is accordingly dismissed. However, in the circumstances of the case the parties shall bear their respective costs. Dated this the 23rd day of June, 2009. V. RAMKUMAR, JUDGE sj