IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 3850 of 2008(O&M) Date of decision: 18.2.2009 State of Haryana through Collector, Bhiwani & others … Appellants versus. Rama @ Ram Mehar … Respondent THE HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. Ajay Gulati, AAG Haryana, for the appellant. … ARVIND KUMAR, J: This is defendants' regular second appeal directed against the judgment and decree dated 14.8.2008 passed by the first appellate Court whereby appeal preferred by the plaintiff against the judgment and decree dated 29.7.2005 passed by the trial Court dismissing the suit, has been allowed and his suit has been decreed. In brief, the facts are that the plaintiff filed suit for declaration and mandatory injunction stating therein that on the intervening night of 28/29.1.1999, on account of breach in Bawani Khera minor, his fields, house and 'Gobar Gas Plant' were submerged in water and damaged. He installed his own tractor to pump out the water. On an application moved by him, the Tehsildar, Bawani Khera, on the basis of report of Naib Tehsildar, recommended for grant of compensation to him. Plaintiff gave his assessment of the loss suffered by him to the tune of Rs.2,12,290/- in regard to his house and Rs.3,00,000/- for the damage to the crops and thus, claimed a sum of Rs. 6 lacs towards the said loss. Defendants contested the suit and denied the claim of the plaintiff. Trial Court vide its judgment and decree dated 29.7.2005, however, dismissed the suit of the plaintiff by holding that the plaintiff had failed to show as to how he had worked out the above-said loss although he was able to point out that his fields had got flooded with water. However, on an appeal by the plaintiff, the first appellate Court vide its judgment and decree 14.8.2008 did not agree with the findings recorded by the trial Court and accordingly, set aside its judgment and decree and decreed the suit of the plaintiff thereby granting RSA No. 3850 of 2008(O&M) -2- compensation to the tune of Rs.1,00,000/- along with interest at the rate of 7 per cent per annum from the date of filing of suit till actual payment. Feeling aggrieved therefrom, the defendants have come to this Court by way of present second appeal. The first appellate Court on appreciation of evidence adduced on record, has set aside the judgment and decree of the trial Court after noticing that it stood proved that the plaintiff suffered huge loss (shown by the plaintiff vide documents Exhibits P-14 and P-15) due to breach of minor in question which is further apparent from the document, Exhibit D-1 produced by the defendants themselves. The first appellate Court repelled the plea of the defendants that there was no negligence on the part of the Irrigation Department and held that defendants' own witness, namely, DW-1, Chattar Singh Tayal, S.D.O., has admitted in his statement that there was breach in the said minor although in his affidavit, Exhibit DW-1/A it has been alleged that there was no negligence on the part of the department. Further, as per statement of PW-1, the damage had been assessed by the Tehsildar and Naib Tehsildar after visiting the spot. It has been further held by the first appellate Court that it stands admitted by DW- 1, Chattar Singh Tayal, SDO, in his cross-examination that he did not go to the spot to determine the cause of breach and that as per log-book, Ex. D-1, four pumps were installed to pump out the water, meaning thereby that water was standing at that place. As per documents/reports, Exhibits P-14 and P-15 produced by plaintiff, he suffered loss of crop to the tune of Rs.48,830/- and the said documents having been prepared by a public servant could not be simply disbelieved. After analyzing the whole evidence coupled with the fact that water might have escalated the damage to the house and the plaintiff might have suffered loss to the extent of Rs.50,000/-, the first appellate Court has rightly granted compensation of Rs.1,00,000/- to the plaintiff. No infirmity or illegality could be pointed out in the findings as recorded by the first appellate Court. No question of law, muchless substantial, arises in the present appeal. Consequently, the appeal being without any merit is hereby dismissed in limine. February 18, 2009 ( ARVIND KUMAR) JS JUDGE