IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 248 of 1999. Decided on: 12.5.2009. __________________________________________________ State of Himachal Pradesh and others. … Appellants. Versus Ranjit Singh and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellants : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Dy.A.G. For the Respondents : Mr. Neeraj Gupta, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Kullu & Lahaul Spiti at Kullu in Civil Appeal No. 4 of 1998 dated 29.8.1998. Brief facts necessary for adjudication of this regular second appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) filed a suit for recovery of Rs. 1,26,000/- by way of damages caused to their “Gharat” and “Kuhal” comprised in Khasra No. 1496, Khata Khatoni No. 120/119/135, measuring two biswas situate in revenue estate Bihar, Kothi Chehani, Tehsil Banjar, District Kullu as per Jamabandi 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 for the year 1984-85. They were earning Rs. 1500/- per month from the “Gharat”. They have also sought mandatory injunction for issuing direction to the appellants/defendants (hereinafter referred to as the defendants for convenience sake) to restore the “Gharat” and “Kuhal” in its original position. The damages were caused to the “Kuhal” and “Gharat” when the defendants started construction of Banjar-Khunan-Khabal road in the year 1987. The “Gharat” and “Kuhal” became useless due to the work undertaken by the defendants while constructing the road. Notice was issued to the defendants on 18.7.1987 for payment of damages. The suit was resisted and contested by the defendants. The learned Sub Judge decreed the suit on 15.12.1997. The defendants preferred an appeal before the learned District Judge, Kullu & Lahaul Spiti. He dismissed the same on 29.8.1998. This regular second appeal was admitted on the following substantial questions of law: 1. Whether both the Courts have wrongly decided issue No.2 holding that the suit of the respondents-plaintiffs is not time barred? 2. Whether Ext. PW-3/A can be made basis for awarding damages when the same has not been proved in accordance with law? Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the judgments and decrees passed by both the learned courts below are not sustainable. He then argued that the suit is not within limitation. The cause of action had arisen to the plaintiffs in the year 1987. He further 3 contended that the plaintiffs have failed to prove damages caused to their “Gharat” and “Kuhal” while constructing the road. Mr. Neeraj Gupta has supported the judgments and decrees passed by both the learned Courts below. I have heard the learned counsel for the parties and have perused the record carefully. Both the substantial questions of law are being taken up together for adjudication to avoid repetition and for convenience. PW-1 Dhian Singh has deposed that the disputed “Gharat” and “Kuhal” were in the ownership and possession of the plaintiffs. It was all weather “Gharat”. They used to earn Rs. 50/- per day. It was completely damaged along with water channel (Kuhal) in the month of June, 1987. His version is supported by PW-2. DW-1 Shri Tikkam Ram has admitted in his cross- examination that the disputed “Gharat” belonged to the plaintiffs. He had also admitted that the “Gharat” was slate roofed and it was damaged due to blasting of rocks nearby and its structure was totally demolished. He has also admitted that the plaintiffs were able to earn ten kilograms “Bhara” per day. DW-2 Dhabey Ram has also admitted that due to negligence of the Public Works Department, the plaintiff sustained damages. The version of DW-3 Shri B.C. Saroj is in variance with the statements of DW-1 and DW- 2. DW-4 Shri Anup Singh has also admitted that due to blasting, the “Gharat” was damaged. DW-5 Shri B.N. Mohindroo in his cross-examination has admitted that the disputed “Gharat” and “Kuhal” were damaged due to blasting of rocks and construction of road. 4 Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the plaintiffs have failed to prove damages to the “Gharat” and “Kuhal” in the year 1987. He then contended that the learned Courts below have wrongly relied upon Ext. PW-3/A while allowing the claim to the plaintiffs. Ext. PW-3/A was issued by the Tehsildar, Banjar. It was written on 12.7.1990 in response to letter dated 1.3.1988. A bare perusal of Ext. PW-3/A reveals that the plaintiffs were earning ten kilograms “Bhara” per day from the “Gharat” and they were entitled to get damages from 1987 onwards. The plaintiffs on the basis of Ext. PW-3/A and the oral evidence have amply proved that the “Gharat” and “Kuhal” were damaged in the month of June, 1987. The “Gharat” and “Kuhal” were not in use with effect from June, 1987 to June, 1994. DWs have also admitted that damage was caused to the “Gharat” and “Kuhal” of the plaintiffs. The learned Courts below have rightly relied upon Ext. PW-3/A, which has been duly proved on record by PW-3. Mr. R.K. Sharma, learned Senior Additional Advocate General has also argued that the suit was not filed within limitation. The plea raised by Mr. Sharma cannot be accepted. The damages were caused to the plaintiffs’ “Gharat” and “Kuhal” in the month of June, 1987. Notice was issued to the defendants under Section 80 of the Code of Civil Procedure vide Ext. PB on 18.7.1987. It is borne out from the record that the matter always remained under consideration of the defendants. Ext. PW-3/A has been written on 12.7.1990 by the Tehsildar, Banjar to the Land Acquisition Officer, 5 Kullu in reply to letter dated 1.3.1988. The claim was turned down in the year 1993. Thereafter, the present suit was filed. Moreover, DW-5 Shri B.N. Mohindroo, Sub Divisional Officer, Public Works Department has admitted that the plaintiffs had filed claim before the Tehsildar in the year 1993 claiming damages. This claim was contested by the defendants. Accordingly, it is held that both the learned Courts below have rightly concluded that the suit was within limitation. Accordingly, in view of the observations made hereinabove, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. May 12, 2009. (cr)