IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA No.: 263 of 1998. Reserved on: 23.12.2008. Decided on: 09.01.2009. Smt. Sanjiv Kaur and others. … Appellants. Versus State of Himachal Pradesh and Another. … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants: Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For the Respondents: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. Rajiv Sharma, Judge: This regular first appeal has been directed against the judgment and decree dated 1.8.1998 passed by the learned District Judge, Shimla in civil suit No.102-S/1 of 1995/89. Brief facts necessary for the adjudication of this regular first appeal are that the appellants/plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) have filed a suit against the respondents/defendants (hereinafter referred to as the defendants for convenience sake) for recovery of a sum of Rs.4,20,900/- on account of damages, with future Whether reporters of local papers may be allowed to see the judgment? No. - 2 - interest. The cause of action as stated in the plaint is that the plaintiffs own property comprising in Khasra Nos. 30, 31, 32 and 33 measuring 21- 17 bighas situated in revenue estate Chhota Shimla, Tehsil and District Shimla. On this property, there are standing buildings, servant quarters, out-houses and orchards etc. belonging to the plaintiffs. This property abuts Chhota Shimla-Kasumpati road. Somewhere in the year 1976, a portion of the aforesaid property to the extent of two bighas, forming part of Khasra No.30 was acquired by the State of Himachal Pradesh for widening of Chhota Shimla-Kasumpati road. The State did not take necessary precautions for protection of the property of the plaintiffs while carrying out the operation for widening of the road with a result the residential cottage was badly damaged. The walls developed cracks, the floor sagged and the area lying vacant in front of the said cottage also sank. The notices were issued to the Public Works Department to compensate them for the damages and for taking necessary measures for the protection of the property against any further damage in future. The portion of the property that was damaged as per the plaintiffs measured 5-3 bighas. The State issued notification for the acquisition of the property which was damaged by them. A settlement was arrived at between the plaintiffs and The State of Himachal Pradesh and the State agreed to denotify the damaged property from acquisition and also agreed to pay a sum of Rs.29,316/- for the damages already caused. As per the averments contained in the plaint, the State of Himachal Pradesh had undertaken to provide protection walls and breast walls, wherever necessary for the protection of plaintiffs’ property against further damage. The plaintiffs received a sum of Rs.29.316/- as damages. The State did not stick to its assurances to provide protection walls and breast walls etc. - 3 - along the road to ensure that their property was not further damaged due to rains and snow-falls etc., with the result in the year 1984 further damage was caused to the property of the plaintiffs. This fact was brought to the notice of the authorities. A writ petition was filed in this Court in the year 1988. The writ petition was dismissed. However, permission was granted to the plaintiffs to file a suit for recovery of damages and the State had agreed not to raise the plea of limitation if the suit was filed within four months. The order was passed on 13.5.1988. The respondents filed written statement and their stand was that the plaintiffs were estopped to sue as they have already accepted a sum of Rs.29,316/- towards full and final satisfaction of their claim for damages arising out of damages to their property caused during the course of widening of the road. It has been denied that any retaining walls were agreed to be constructed on or around the property of the plaintiffs for its protection. It is also stated that the retaining walls had been constructed by the defendants even before the settlement and the said wall was intact and no damage has been caused to it. The following issues were framed when the suit was pending in the High Court vide order dated 14.9.1990:- 1. Whether the suit is within limitation? ….OPP. 2. Whether the plaintiffs are estopped from filing the instant suit by their acts, conduct and acquiescence as alleged? … OPD. 3. What was the nature of the compromise entered into between the parties on September 26, 1984? ….. O.P. Parties. 4. Whether the plaintiff has sustained damages on account of non fulfillment of the assurances pursuant to the compromise referred to above or due to the negligence of the defendants as alleged? If so to what effect? ..OPP - 4 - 5. In case issue No.4 is decided in the affirmative to what amount of damages the plaintiffs are entitled to? …..OPP. 6. Relief. The learned District Judge has given the following findings:- Issue No.1 = Yes. Issue No.2 = No. Issue No.3 = There was no clause in the compromise to make it obligatory for the defendants to raise any breast wall or protection wall for the protection of the plaintiffs’ property. Issue No.4 = No. Issue No.5 = No. Relief = Suit is dismissed per operative part of the judgment. The learned District Judge dismissed the suit on 1.8.1998. Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that the judgment and decree dated 1.8.1998 is not sustainable in the eyes of law. He then contended that the learned District Judge has not taken into consideration the oral as well as documentary evidence led by the parties. He lastly contended that the learned District Judge has come to a wrong conclusion that the matter already stood settled in view of Ex.P-N and Ex.P-O dated 26.9.1984. The learned Senior Additional Advocate General had supported the judgment and decree passed by the learned District Judge. I have heard the learned counsel for the parties and perused the record carefully. PW-1 is Shri Devi Chand. He had produced the records of writ petition No.93 of 1988. He has also produced the copy of order dated - 5 - 13.5.1988 passed in writ petition (Ex.P-A). He has further produced the copy of order dated 28.9.1988 (Ex.P-B). PW-2 is Shri Birender Singh Malhans. He has tendered in evidence Ex.P-C, which is copy of jamabandi. He has deposed that the State Government had acquired portion of the land, i.e. 2 bighas for construction of road. He further deposed that when the operation of widening was done, as a result of cutting of the road and in the absence of any breast wall, the adjoining land on which there were fruit trees, deodar trees and cottage were adversely affected. According to him about 600 square yards which was not acquired had slided down and 14 deodar trees, five apple trees, two pears trees had been damaged. The cottage had developed cracks and floors and foundation of the cottage had also been damaged. He has placed on record the photographs ExP- 1 to Ex.P-4 taken in the year 1978. The Municipal Corporation had issue notices to the plaintiffs vide Ex.P-5 to Ex.P-8. The copy of the representation made to the Chief Engineer, Public Works Department is Ex.P-D. Ex.P-9 to Ex.P-11 are the postal receipts regarding service of the notice on Public Works Department officers. No reply was received from the officers of Public Works Department. The Public Works Department had assured to take corrective measures. He sent a reminder to the Chief Engineer Ex.P-F. A legal notice was served on the Executive Engineer through Advocate, Ex.P-G. His wife was served with a notice Ex.P-J by the Municipal Corporation, Shimla requiring her to remove deodar and Kail trees from the said road side. She was also challaned by the Municipal Corporation. The copy of the summons received is Ex.P-12. Ex.P-K is the notice issued by his Advocate to the Superintending Engineer, Fourth Circle regarding said damage. Ex.P-13 - 6 - and Ex.P-14 are the postal receipts of the notice. A notice was also served on Secretary-cum-Chief Engineer vide Ex.P-L. No action was taken by the authorities. He had also tendered Ex.P-16 to Ex.P-33, which are photographs of the damage which has been caused to the property and these photographs indicate the position in the year 1980. He has admitted that the land was released from acquisition and they were assured that they would be compensated for the damage which was caused to the property during the course of construction and widening of the road. The compromise was written in the form of statements Ex.P-N and Ex.P-O. According to him the Public Works Department did not construct the retaining walls with the result the cottage has further been damaged when rains occur. He has got the damage assessed from the Architect, namely, Mr. Mehta. He had taken 31 photographs of the cottage. The negatives of the photo graphs are Ex.P-2/1 to 2/31 and their developed photographs are Ex.P-2/32 to P-2/64. In his cross- examination he has deposed that the cottage in question was constructed in the year 1920. He has admitted that the officials of the department who had inspected the spot at the instance of the department have given the opinion that the land slides are taking place on account of the strata of the hill lock being loose. PW-3 is Shri Umesh Kumar, Proprietor, Kumar Studio. He has deposed that he has developed the photographs. PW-4 is Shri Gumat Ram. He has deposed that he is working as Mali in Aira Home. He had seen the disputed land. The breast walls which were raised while constructing the road had collapsed. The debris had fallen on the fruit bearing trees. The building has developed cracks. No breast wall was raised towards the house while constructing the road. Initially he has denied the suggestion that the plaintiffs have received the - 7 - compensation, however, later on he has admitted that the plaintiffs were compensated by way of compensation for all the damages. In cross- examination he has admitted that no body had taken him to see the cracks developed in the cottage, however, he had seen from the passage. PW-6 is Architect. He has stated that the building in question had developed cracks while the Public Works Department had undertaken cutting of the road. He has admitted that he has not put any date on Ex.PW-6/A to Ex.PW-6/E. He did not know that the matter was compromised between the parties. PW-7 is Assistant Engineer, Public Works Department. He has deposed that the letters, copies whereof and the photographs which were shown to him from the file of documents were not available in the record brought by him. PW-8 has brought the requisitioned record. Ex.P-Q is the copy of notice received from the Advocate of the plaintiffs. He has also admitted about the representation, copy of which is Ex.PW-8/A. He has further admitted the issuance of Ex.PW-8/B. DW-1 is Shri B.S. Rana, Assistant Engineer, H.P., Public Works Department. He has deposed that there was compromise between the plaintiff, Sanjiv Kaur and Public Works Department regarding the damage caused to the property of plaintiffs while undertaking construction/widening of the road by the department. The department had agreed to pay a sum of Rs.29,316/- to the plaintiffs in full and final satisfaction of the damages. The money was also paid. No work was executed by his department after the execution of compromise on or around the property of the plaintiffs. According to him retaining wall had already been constructed before the amicable settlement of the dispute. The retaining wall which was constructed by the department was in - 8 - existence on the spot and the same was intact and no damage was caused to the same. According to him there was no need for construction of any protection wall. According to this witness, the compromise was arrived at in the year 1984 and Shri P.C. Gupta was at that time Assistant Engineer. PW-2 has not stated that any damage was caused to the property in the year 1985 or in 1986. He has admitted about the compromise vide Ex.P-N and Ex.P-O. PW-3 has only developed the photographs. PW-4 has not seen the building from close proximity and he had seen the cracks from the passage. PW-6 has admitted that he has not given any date on Ex.PW-6/A to Ex.PW-6/E. He has admitted that the buildings can give way due to excessive rains etc. PW-8 has only produced the record. DW-1 has categorically deposed that the matter was already compromised between the parties and a sum of Rs.29,316/- was also paid to the plaintiffs. A bare perusal of Ex.P-N establishes that Smt. Sanjiv Kaur had accepted a sum of Rs.29,316/- towards repairs etc. She has further stated that after the receipt of the amount it was open for the Public Works Department to raise breast walls etc. due to technical reasons if thought necessary by it and the owners will have no objection to this. Shri P.C. Gupta has stated on 26th September, 1984 in Ex.P-O that a sum of Rs.29,316/- was already paid to the plaintiffs and the matter was finally settled. The plaintiffs have not led any tangible evidence to establish that the property was damaged after the receipt of compensation. PW-2 Shri Birender Singh Malhans has admitted about the compromise arrived at between the parties vide Ex.P-N and Ex.P-O. The defendants have not admitted that any damage was caused to the property in the year 1985. - 9 - PW-6 Shri Rakesh Mehta, Architect has not spelt out that the damage was caused to the property after the settlement between the parties. There was no compulsion on the defendants to raise any breast walls while widening the road after the settlement was arrived at between the parties on the basis of statements Ex.P-N and Ex.P-O. There was no commitment by the Public Works Department. Accordingly, the learned District Judge has correctly appreciated the evidence led by the parties and has come to right conclusion that the plaintiffs have failed to establish that any damage was caused to their property after the settlement in the year 1984. The learned District Judge has also come to right conclusion that there was no commitment by the defendants to raise breast walls or protections walls after the settlement between the parties. Consequently, there is no force in this regular first appeal and the same is accordingly dismissed. However, there shall be no order as to costs. January 09, 2009. (Rajiv Sharma) (sck). Judge.