Regular Second Appeal No. 1853 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1853 of 2009 Date of decision : February 14, 2011 State of Haryana and others ....Appellants versus Smt. Kaushalya Devi ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Amit Goyal, AAG Haryana, for the appellants Mr. JS Saneta, Advocate, for the respondent L.N. Mittal, J. (Oral) Defendants – State of Haryana and its officers, who were successful in the trial court but have been unsuccessful in lower appellate Court, have filed the instant second appeal. Respondent – plaintiff Kaushalya Devi filed suit for recovery of ` 10 lacs as damages alleging that the defendants laid water supply pipeline in the street abutting her house. However, the trench dug for the same was not properly filled with earth. Consequently, rainy water collected and caused damage to the house of the plaintiff on account of negligence of the defendants. Regular Second Appeal No. 1853 of 2009 -2- Defendants controverted the averments made by the plaintiff. It was pleaded that the water pipeline was laid properly and the excavation done was filled up completely after laying of pipeline. There was no negligence of the defendants. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Kurukshetra vide judgment and decree dated 26.2.2007 dismissed plaintiff's suit. First appeal preferred by the plaintiff has, however, been allowed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 31.1.2009 and thereby plaintiff's suit has been decreed for recovery of ` two lacs with interest @ 9% per annum from the date of filing of suit till recovery. Feeling aggrieved, defendants have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that the lower appellate court has completely misread and misappreciated the evidence led by the appellants-defendants. It was pointed out that there is no admission by defendants' witnesses as erroneously observed by the lower appellate court. On the other hand, learned counsel for the plaintiff-respondent contended that due to defendants' negligence, plaintiff's house was damaged and the plaintiff has been rightly awarded damages by lower appellate court. It was also contended that the defendants even offered to give cement bags to the plaintiffs for repair of her house as per newspaper report produced in Regular Second Appeal No. 1853 of 2009 -3- evidence. It was also contended that defendants' witnesses have admitted that rainy water caused damage to the plaintiff's house. I have carefully considered the rival contentions. Perusal of statements of witnesses of the plaintiff as well as of the defendants as shown by counsel for the appellants reveals that the defendants' witnesses did not make alleged admission as erroneously observed by the lower appellate court. Mulakh Raj DW1 simply admitted that if excavation is not filled, it may possibly result in damage to the adjoining property. However, there is no admission by either of the two witnesses of the defendants that in the instant case, water got filled near the house of the plaintiff on account of laying of water pipeline. Both the witnesses of the defendants stated that the excavation was properly filled. On the other hand, there is only oral evidence of the plaintiff which is not sufficient. No newspaper report has been produced in evidence to depict that defendants have ever offered cement bags to the plaintiff for repair of her house. Even otherwise, newspaper report is not piece of evidence unless the person who had made that report directly gives evidence and offers himself for cross-examination. Learned counsel for the plaintiff-respondent could not point out any admission made by defendants' witnesses which may be favourable to the plaintiff. On the other hand, defendants' witnesses have stood the test of cross-examination. Plaintiff's evidence is not sufficient to prove that any damage to her house was caused due to negligence of the defendants. On the contrary, admittedly drains are flowing adjacent to the house of the plaintiff and the said drains are not of the defendants. Consequently, Regular Second Appeal No. 1853 of 2009 -4- damage to plaintiff's house could accrue on account of flow of water in the drains. The damage could also be the result of accumulation of water as her house was very close to the drains. Onus was on the plaintiff to prove her case but she has failed to prove the same. Statements of plaintiff and her 2/3 witnesses are not sufficient to prove her case. The said statements stand rebutted by the defendants' evidence. Learned lower appellate court decreed the plaintiff's suit on the basis of alleged admissions made by defendants' witnesses. However, no alleged admissions have been made by defendants' witnesses. Thus, finding of the lower appellate court in favour of the plaintiff is based on misreading and misppreication of evidence and the said finding is patently perverse and illegal. Consequently, substantial question of law to this effect arises for consideration in this second appeal and the said question is answered in favour of the appellants. Lower appellate court reversed the well reasoned finding of the trial court without any sufficient ground. For the reasons aforesaid, the instant second appeal is allowed. Judgment and decree of the lower appellate court are set aside and judgment and decree of the trial court dismissing the plaintiff's suit are restored. Decretal amount deposited by the appellants in this Court and in the lower appellate court be refunded to the appellants. ( L.N. Mittal ) February 14, 2011 Judge 'dalbir'