R. S. A. No. 1233 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1233 of 2010 Date of Decision : March 23, 2011 Ramphal .... Appellant Vs. Mahender Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Anil Ghangas, Advocate for the appellant. Mr. Ramender Chauhan, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Defendant Ram Phal having failed in both the courts is in second appeal. Respondent-plaintiff Mahender Singh filed suit against defendant-appellant for recovery of Rs.2,00,000/- as damages, alleging that the defendant along with two other persons, tied four mules of the plaintiff to railway track and they were run over by the train and died, causing loss to the plaintiff. R. S. A. No. 1233 of 2010 2 The defendant denied the plaint averments and raised certain other pleas. Learned Additional Civil Judge (Senior Division), Loharu, vide judgment and decree dated 12.08.2008, partly decreed the plaintiff's suit for recovery of Rs.1,00,000/- as damages for death of three mules of the plaintiff caused at the hands of defendant. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Bhiwani, vide judgment and decree dated 16.01.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Plaintiff examined three eye-witnesses namely Zile Singh (PW-2), Satpal (PW-3) and Bassesar (PW-4) to prove that the defendant had tied the mules of the plaintiff to the railway track. Death of three mules of plaintiff on being run over by train is not disputed, as is also manifest from defendant's own evidence. The defendant tried to rebut the plaintiff's case by depicting that the cattle had not been tied to the railway track. However, defendant miserably failed in his said attempt. Jagdish (DW-4) is driver of the train, which ran over the cattle. However, he stated in cross- examination that he did not even know the number or species of the cattle being night time and he also could not say if the mules were tied to the track or not. Ram Niwas (DW-5) Gangman was also examined in this regard, but R. S. A. No. 1233 of 2010 3 he stated in cross-examination that he was not on duty at the relevant time. Consequently, his presence at the spot was found doubtful by the courts below. On the other hand, plaintiff's evidence stands unrebutted. The defendant also came out with a new plea of alibi. In this regard, he has stated that he was away to Village Khaleta, District Rewari, where he got chest pain and he went to Government Hospital at Khol. Dr. S. C. Gupta (DW-2) stated about treatment of defendant as out-door patient. Narender (DW-6) also supported the defendant's version in this regard. However, even after getting treatment as out-door patient in hospital at Khol during day time, the defendant could reach the place of occurrence, which took place at about 09:30/10:00 P.M. Statement of Narender (DW-6) also does not help the defendant in his attempt to establish his plea of alibi because Narender (DW-6) stated in cross-examination that they had returned to Loharu on 07.08.2002 – the date of occurrence. It emerged from the statement of Narender (DW-6) that he and defendant had gone to Village Khaleta on 06.08.2002. Consequently, the plea of alibi taken by the defendant during evidence is not substantiated. Moreover, evidence of the defendant in this regard is also beyond his pleadings. He did not raise any such plea in the written statement. Both the courts below have appreciated the evidence and have come to concurrent finding that defendant caused death of three mules of plaintiff by tying them to the railway track, as a result whereof, the mules R. S. A. No. 1233 of 2010 4 were run over by the train and died. The said finding is based on appreciation of evidence led by the parties. Consequently, the said finding cannot be said to be perverse or illegal in any manner so as to warrant interference in second appellate jurisdiction because evidence is not to be re-appreciated for the third time in second appeal. However, even on re- appreciation of evidence, it cannot be said that finding arrived at by the courts below is perverse or illegal or suffers from vice of misreading or misappreciation of evidence. View taken by the courts below cannot be set aside in second appeal, even if a different view is also possible, unless the view taken by the courts below is patently perverse or illegal. It is not so in the instant case. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of merit and is accordingly dismissed. However, future interest from the date of decree of the trail court till recovery shall be 6% per annum in view of mandatory provision of Section 34 of the Code of Civil Procedure. March 23, 2011 ( L. N. MITTAL ) monika JUDGE