IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 239 of 1997. Date of decision: 11.12.2009 Kamla Devi …. Appellant Versus State of H.P & another. …. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellant: Shri Bhupender Gupta, Advocate with Ms.Charu Gupta, Advocate. For the respondents: Sh.Rajesh Mandhotra, Deputy Advocate General. ____________________________________________ Deepak Gupta, J.(Oral) This Regular Second Appeal was admitted on the following substantial questions of law:- “1. Whether the learned Lower Appellate Court has misread Exhibit PW-4/C to hold the age of the fruit trees to be four years only? 2 2. Whether the Lower Appellate Court was wrong in holding the age of the fruit trees to be merely four years and assessing the compensation on the basis of such age of fruit trees, do the findings are apparently perverse and erroneous particularly on the basis of documentary evidence Exhibit PW-4/U and PW-5/A? 3. Whether the findings regarding the age were final between the parties on account of the findings rendered in Exhibit PW- 5/A operating as resjudicata? Briefly stated the facts of the case are that the appellant Kamla Devi (hereinafter referred to as the ‘plaintiff’) owns 12 bighas 10 biswas of land situate in Mauja Shalet, Tehsil and District Shimla. According to her, she had acquired the ownership of the land in 1966-67 and there were already trees on the land. In the year 1971, the age of the trees was about 6 to 7 years. 3 In April 1971, the officials of the State started construction of a road through the land in question. According to the plaintiff, the road was constructed without acquiring the land. 1-3 bighas of land in Khasra No.429-386 with 23 apple plants on it was actually used for the construction of the road whereas 1-5 bighas of land out of the said Khasra on which 45 apple trees were standing was damaged and all the trees were destroyed. The plaintiff issued a legal notice and the land used for construction of the road was actually acquired but the plaintiff was not paid damages for the land which had been damaged in the process of the construction of the road. The plaintiff thereafter filed a writ petition in the High Court of Himachal Pradesh claiming damages. The writ petition was disposed of with liberty reserved to the plaintiff to file a civil suit for damages. The learned Deputy Advocate General appearing for the State fairly stated that the claim for damages would not be opposed or defeated on the 4 ground of limitation. Thereafter the plaintiff filed the present suit for recovery of Rs.60,000/- on account of damages. The learned Trial Court decreed the suit for Rs.60,000/- as prayed for. An appeal was filed by the State and the learned District Judge assessed the damages on account of loss to the grass and cost of removal of debris on the land measuring 1-5 bighas at Rs.560/-. He assessed the loss for compensation payable for the damage to 45 trees at Rs.3375/-. In respect of Khasra No.92, the learned District Judge assessed the loss for removal of debris and damage to the grass at Rs.1879/- and, therefore, he assessed the total compensation at Rs.5814/-. He also awarded interest @ 12% per annum from 1971 to 1987 which was calculated at Rs.11,200/-. Therefore, a decree for Rs.17,000/- with future interest @ 12% per annum from the date of the institution of the suit, i.e., 15.6.1987 till the date of payment of the aforesaid amount with proportionate costs was passed in favour of the plaintiff and against the defendants. 5 The appellant in this appeal has confined her challenge to the assessment of the value of the apple trees. Sh.Bhupinder Gupta, learned Senior Advocate appearing on behalf of the plaintiff submits that the learned Lower Appellate Court has totally misdirected itself and has misread the evidence while holding that the age of the trees in question was only four years. Ext.PW4/C is a notice issued by the plaintiff in which she has claimed that the age of the apple trees was more than four years. Relying upon this, the learned District Judge assessed the value of the apple trees by taking their age at four years. Ext.PW4/R is Khasra Gardawari which shows that the land in question was shown to be apple orchard even in the year1966. In respect of the land which was acquired, the learned District Judge vide his award Ext.PW5/A came to the conclusion that the apple trees were 6-7 years old. Admittedly the entire land was one block of land and one orchard. In view of the entire evidence on record, the learned District 6 Judge misdirected himself by not taking into consideration all the other evidence on record, i,e, award Ex.PW5/A, the Khasra Gardawari PW4/R to PW4/U and the notice Ext.PW4/C which only mention that trees are more than 4 years old. It would be just and reasonable to hold that the trees in question were six years old. Therefore, the compensation for the trees will go up by 50% and the compensation in respect of the trees is increased from Rs.3375/- to Rs.5062.50 paise. The compensation in respect of lifting debris and damage to grass is upheld, i.e., Rs.560/- as assessed by the learned District Judge. In addition thereto, the appellant is also entitled to Rs.1879.20/- in respect of damage to a portion of Khasra No.92. The total compensation is assessed at Rs.7501.70 paise which is rounded off to Rs.7500/-. In addition thereto, the appellant is entitled to interest @ 12% per annum on this amount from 1971 till 15.6.1987, i.e., for a period of 16 years which works out to Rs.14,400/-. Thus 7 the total amount of compensation to which the appellant is entitled is assessed at Rs.21,900/-. The appellant shall also be entitled to future interest @ 12% per annum on this amount from 15.6.1987, i.e., date of filing of the suit till payment of the entire amount. Accordingly the appeal is partly allowed and the decree passed by the learned Lower Appellate Court is modified and a decree for Rs.21,900/- with future interest @ 12% per annum from the date of institution of the suit, i.e., 15.6.1987 till the date of payment of the aforesaid amount is passed in favour of the plaintiff and against the defendants. No order as to costs. December 11, 2009 ( Deepak Gupta ) (m) Judge