IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 463 of 2004 alongwith RFA No. 9 of 2005 Reserved on: 8.7.2009 Date of decision: 21.7.2009 RFA No. 463 of 2004 Gian Chand ……………Appellant Versus State of H.P. & Ors. ……………Respondents RFA No. 9 of 2005 State of H.P. & Anr. ……………Appellants Versus Gian Chand & Ors. ……………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, J. Whether approved for reporting?1No RFA No. 463 of 2004 For the appellant : Mr. Romesh Verma, Advocate. For respondents No. 1 to 3 : Mr. J.S. Guleria, Assistant A.G. For respondents No. 4 & 5 : Mr. Surender Sharma, Advocate. RFA No. 9 of 2005 For the appellants : Mr. J.S. Guleria, Assistant A.G. For respondent No. 1 : Mr. Romesh Verma, Advocate. For respondents No. 2&3 : Mr. Surender Sharma, Advocate. 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 V.K. Ahuja, J. This judgment shall dispose of the appeal filed under Section 96 of the CPC by Gian Chand, appellant against the judgment and decree of the court of Learned Additional District Judge (Presiding Officer) Fast Track Court, Solan dated 14.10.2004 decreeing the suit of appellant for recovery of Rs. 60,000/- only and dismissing the claim for the remaining amount of Rs. 2,05,000/-. This judgment shall also dispose of the appeal filed by the respondents-State against the judgment and decree, mentioned above, vide which the relief of Rs. 60,000/-, as damages was granted in favour of the appellant. Briefly stated the facts of the case are that the appellant, hereinafter referred to as ‘plaintiff’ filed a suit for damages of Rs. 2,65,000/- against the respondents, hereinafter also referred to as ‘defendants’. The plaintiff alleged that he was owner in possession of land comprised in khasra No. 440, khata No. 46, khatauni No. 143 measuring 6590 Sq. mts. in Up Mohal Dolag Tehsil Kandaghat, District Solan. It was alleged that plaintiff has got a water tank and a house in this land, 3 also used to grow vegetables and other cash crops. Defendant No. 4 was the Pradhan of Gram Panchayat and was having two excavator machines. Defendant No. 4 got approved from defendant No. 2 the construction of approach road from Kandaghat to Thadda Mulla Devta. He started the work in May 2000 and used machines for cutting work of the road, though the plaintiff had requested the defendant No. 4 not to use the machines or construct the road through his land. It was further alleged that defendant No. 4 started cutting the land with the excavator machines near the land and retaining wall of the plaintiff and plaintiff objected to the use of the machine. The defendant No. 4 assured that no damage would be caused and machine would be used for cutting the land adjoining to his land. However, it was alleged that due to use of the machine the damage was caused to the retaining wall and the retaining wall up to the length of fourteen metres and five and half metres in height totally collapsed and fell on the land of plaintiff. It was further alleged that retaining wall up to the length of ten metres bulged out and was likely to come down at any time. The plaintiff, therefore, 4 alleged that he had suffered a loss of more than Rs. 1,50,000/- due to fall of retaining wall. He also claimed a sum of Rs. 50,000/- for loss of crops during the pendency of the suit. He also claimed a sum of Rs. 50,000/- on account of mental tension and agony. In all, he claimed a sum of Rs. 2,65,000/-, as damages on various grounds, as mentioned above. Defendants pleaded that the link road was constructed only on the Government land and not on the land of the plaintiff. The fact that defendant No. 4 was Pradhan of Gram Panchayat and had been getting the schemes approved for maintenance and construction of roads etc., was admitted. However, it was denied that any machine was used or that the plaintiff suffered any damage. It was pleaded that the work was done manually. It was also denied that defendant No. 4 was owner of any excavator machine. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether plaintiff is entitled for damage, as alleged? …..OPP 2. Whether plaintiff is entitled for mesne profit, as alleged? …..OPP 5 3. Whether plaintiff is entitled for the decree of mandatory injunction, as alleged? …..OPP 4. Whether suit is bad for want of legal valid notice under Section 80 CPC, as Alleged? …..OPD 1,2 5. Whether plaintiff has no cause of action to file the present suit, as alleged? …..OPD 1,2,3,4 6. Whether suit is not maintainable, as alleged? …..OPD 1 &2 7. Whether plaintiff has no locus-standi to file the present suit as alleged? ….OPD 1 to 4 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? …..OPD 1 &2 9. Whether suit is bad for want of non- joinder of necessary parties, as alleged? …..OPD 1 to 4 10. Whether suit is bad for want of better particulars, as alleged? ….. OPD 3 &4 11. Relief. Parties led evidence and learned trial Court vide its impugned judgment decreed the suit of the plaintiff for damages to the extent of Rs. 60,000/- only. Being aggrieved by the said judgment the plaintiff has filed the appeal for award of the remaining damages, while the defendants have filed the appeal for setting 6 aside the award of Rs. 60,000/- in favour of the plaintiff, as damages. I have heard the learned counsel for the parties and gone through the record. The submissions made by the learned counsel for the appellant were that the plaintiff had proved fully that he had suffered damages and for reconstruction of the retaining wall a sum of Rs. 1,50,000/- was required. He also argued that the plaintiff had suffered loss of crops to the extent of Rs. 50,000/- and he was also entitled to a sum of Rs. 50,000/- for tension and agony and accordingly, the learned trial Court had wrongly disallowed the claim of the plaintiff for the remaining amount. On the other hand, learned Assistant Advocate General had submitted that they have denied that any wall was damaged due to the use of the machinery. It was also submitted that the learned trial Court had wrongly allowed the claim of Rs. 60,000/- in favour of the plaintiff, which damage was caused due to natural calamity and as such, the plaintiff was not entitled to any damages. I have gone through the judgment of the learned trial Court in detail. A perusal of the same shows 7 that the learned trial Court had concluded that the width of the retaining wall was 120 metres. However, it was observed that the notice Ex.P3, dated 26.7.2000 issued to the defendants shows that the damage to his wall to the extent of 24 metres in length and 5.50 metres in height had been caused. Plaintiff’s statement shows that he had spent a sum of Rs. 4 to 4.5 lacs for construction of the wall which was 120 metres long. It was also observed that as per the map Ex.Pw3/B, the wall up to the length of 14 metres collapsed and up to the length of 10 metres bulged out. Thus, part of the wall had been damaged and part of it had been bulged out, which can be said to be about one and half of the total length of the wall. Taking in view the fact that the plaintiff had spent Rs. 4 to 4.5 lacs on the construction of the wall measuring 120 metres the learned trial Court had rightly concluded that a sum of Rs. 40,000/- will be required for reconstruction of 14 metres of wall while a sum of Rs. 20,000/-will be required for getting the bulged wall repaired. It was also pointed out that plaintiff will be at liberty to use the material lying at the spot and, therefore, the learned trial Court had rightly concluded the amount as Rs. 60,000/- 8 on account of the loss caused to the retaining wall. The learned trial Court had referred to the evidence and observed that defendants had not led evidence to show as to whether the work was completed in May 2000, as pleaded by them but the evidence led shows that this work continued even till July 2000 when notice Ex.P3, dated 26.7.2000 was issued to the defendants. The defendants never denied that no notice was issued nor they replied to the notice that the work has already been stopped in May 2000 and that no machine was being used to construct the road. Defendants had examined Ramesh Thakur defendant No. 4 as DW3. He admitted in his statement that the work started in May 2000 but pleaded that it was completed in the same month. He stated that the machine was not used for this work and he admitted having received notice Ex.P3, vide acknowledgement Ex.P7. He denied his knowledge in case he had sent any reply to the notice. He also denied if any agreement was entered into that the work was to be done by using the machine. He, however, was not able to state as to when the machine was used, for how much period and on 9 which dates, to which he has given evasive replies and has not come with evidence to prove if the machine was used or not and on which dates. The learned trial Court on the basis of the evidence had rightly concluded that the machine was used and the damage was caused due to the use of the machine and not due to any natural calamity or rain fall. From the aforesaid discussion, I do not find any reasons to dis-agree to the findings of the learned trial Court and the amount of Rs. 60,000/- was rightly awarded to the plaintiff on account of loss caused to his retaining wall. In regard to the claim of Rs. 50,000/-, on account of the costs of the crops, there is only report of Patwari Ex.PE5/A, in which the loss was not mentioned in terms of money and, therefore, the learned trial Court had rightly not granted any damages for the said loss, if any. In regard to the mental tension or agony, there was no specific cause alleged or proved as to how the plaintiff was entitled to Rs. 50,000/- on account of mental tension and agony. Keeping in view the above facts, I agree with the findings of the learned trial Court holding that the 10 appellant was only entitled to a sum of Rs. 60,000/-, as damages which findings are based upon correct appreciation of evidence which findings do not call for any interference by this Court. In view of the above discussion, I find no merit in the appeal filed by the plaintiff for enhancement or appeal filed by the defendant for quashing and setting aside the award in favour of the plaintiff and as such, both the appeals filed by the appellant and state of H.P. are liable to be dismissed, which are dismissed accordingly. However, the parties are left to bear their own costs. Decree sheet be prepared. (V.K. Ahuja), July, 21st 2009. Judge. (vs)