IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 180 of 1999. Reserved on:7.7.2009. Decided on: 4.8.2009. __________________________________________________ Smt. Sallo Devi … Appellant. Versus The State of Himachal Pradesh. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Ashok Sood, Advocate. For the Respondent : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. __________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 12.10.1998 passed by the learned District Judge, Shimla in Civil Appeal No. 112-S/13 of 1998/93. Brief facts necessary for adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff for convenience sake) had filed a suit for recovery of Rs. 1,99,545/-. The case of the plaintiff in nutshell is that she is exclusive owner in possession of land measuring 17-6 bighas bearing Khasra Nos. 47, 48, 49, 87, 91 and 94 situated in village Sherdhar, Pargana Barnarkandi, Tehsil Kumarsain, District Shimla. 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 There was one modern style water flour mill and two storeyed cowshed building. She has alleged that the H.P. Public Works Department constructed road known as Matiana-Baragaon road in 1979. The labour of the Public Works Department damaged and destroyed the land, water floor mill and cowshed of the plaintiff. The cultivated land was also damaged. The retaining walls of the fields also collapsed and the suit land became unfit for cultivation. The employees, officials and workers of the Public Works Department were negligent and careless while constructing the road. She filed a suit for recovery of Rs. 1,99,545/-. The respondent-defendant (hereinafter referred to as the defendant for convenience sake) contested the suit. It was denied that there was water flour mill and cowshed built over the suit land. The construction of the road was admitted. The department has made payment of Rs. 9,663/- for the damages sustained by the plaintiff. The replication was filed by the plaintiff. The learned Sub Judge decreed the suit for damages of Rs. 1,99,545/- along with cost and future interest at the rate of 12 per cent per annum from the date of institution of suit till the full and final satisfaction of the decretal amount in favour of the plaintiff. The defendant preferred an appeal before the learned District Judge, Shimla against the judgment and decree passed by the trial Court. The learned District Judge, Shimla partly accepted the appeal and instead of decree for an amount of Rs. 1,99,545/-, he passed a decree for a sum of Rs. 48,468/- with proportionate cost and future interest at the rate of six per cent per annum from the date of institution of the suit to the date of payment of amount. The plaintiff has filed this regular 3 second appeal against the judgment and decree passed by the learned District Judge dated 12.10.1998. This regular second appeal was admitted on the following substantial questions of law: 1. Whether any law or rules permits to reduce the schedule rates of H.P. P.W.D. by 40% while making assessment of loss and damages to any property by an expert valuer/Engineer? 2. Whether the learned First Appellate Court erred in not drawing legal and valid adverse inference against the respondent on not producing the best evidence in the form of measurement book (M.B.) in the possession of respondent? 3. Whether the judgment and decree appealed against is sustainable in law in the facts and circumstances of the case? 4. Whether the impugned judgment and decree is vitiated as being the result of mis-reading and over- looking the material evidence as existing in the record of the case? 5. Whether the findings given by the learned First Appellate Court in rejecting well proved claim of the appellant on drawing assumption and presumption and therefore, misplaced in law and on facts? Mr. Ashok Sood has vehemently argued that the learned District Judge has misconstrued and mis-read oral and documentary evidence while reducing the amount. He then contended that the judgment of the learned Sub Judge be restored. The learned Senior Additional Advocate General has supported the judgment and decree passed by the learned District Judge. 4 I have heard the learned counsel for the parties and perused the pleadings carefully. Since the substantial questions of law are inter-connected and inter-linked, they have been taken up together for adjudication to avoid repetition of discussion of evidence and for convenience. The plaintiff has placed strong reliance upon the damages assessed by him from PW-2 Shri R.B. Saxena. PW-2 Shri R.B. Saxena has deposed that he visited the spot to assess the quantum of compensation payable to the plaintiff on account of accumulation of debris on his land, damage to the cowshed, damage to the Gharat, damage to the water intake feeding the Gharat and damage to the retaining walls. According to report Ext. PW-2/A and statement of assessment Ext. PW-2/B, a sum of Rs. 39,780/- was required to remove the boulders, rocks, stones, debris etc. from the suit land. PW-4 Shri Bhag Chand Patwari has prepared the Tatima Ext. PX. According to Ext. PX, an area to the extent of 2-09-51 hectares equivalent to 12-3 bighas,bearing Khasra Nos. 92/1, 101, 105 and 107 is covered by stones and another area measuring 0-23-26 hectares, equivalent to 3-16 bighas bearing Khasra Nos. 92/2 and 91 has a few stones on it. It appears that settlement has taken place after the filing of the suit and the suit property has been described by new numbers. A combined reading of report Ext. PW- 2/A and the statement of assessment Ext. PW-2/B read with Ext.PX amply proves that the land of the plaintiff was covered with debris and stones. PW-2 Shri R.B. Saxena has prepared the report as per the schedule of rates prescribed by the Government. According to 5 him, the total expenditure liable to be incurred by the plaintiff for removal of boulders, stones, debris etc. from the suit land would be Rs. 39,780/-. The learned District Judge has accepted the report Ext. PW-2/A and statement of assessment Ext. PW-2/B read with Ext. PX, however, without any cogent and convincing reasons had reduced the amount from Rs. 39,780/- to Rs. 23,868/-. There was no occasion for the learned District Judge to reduce the amount by 40% on the analogy that the H.P. Public Works Department has to pay salary to its employees and if the plaintiff had to remove the boulders, debris etc., it would be at a cheaper rate. The findings recorded by the learned District Judge reducing the amount from Rs. 39,780/- towards removal of boulders and stones etc. by 40% is set aside. The defendant has stated that only a sum of Rs. 2400/- on account of the cost of removal of debris was payable. This plea has not been accepted by the learned District Judge also. Now, the Court will advert to the damages caused to Gharat. According to the plaintiff, he has incurred damage to the extent of Rs. 22,159/-. According to the defendant, plaintiff was entitled to a sum of Rs. 2769/-. The plaintiff has relied upon report of PW-2 Shri R.B. Saxena i.e. Ext. PW2/F. The defendant has relied upon assessment of estimates Exts. D-2, D-3 and D-4 in respect of Gharat. According to PW-3 Shri S.L. Verma, the plaintiff has sustained damages to the Gharat to the extent of Rs. 22,159/-. Shri Hira Mani, President of Gram Panchayat has also deposed that Gharat of the plaintiff was damaged. PW-1 Shri Bordoo Ram has deposed that there was a double storeyed building over the suit land which was damaged and destroyed at the time of construction 6 of the road. The learned District Judge, however, has discarded Ext. PW-2/F only on the ground that since the Gharat was constructed by local material, a sum of Rs. 22,159/- was not required for reconstruction of the structure of Gharat and intake tank. Once it is proved that Gharat and intake tank were damaged, the plaintiff was to be suitably compensated. It was not necessary for the plaintiff to construct again the Gharat and intake tank by old material. Accordingly, the findings recorded by the learned District Judge that damages already paid for the structure of the Gharat were just and adequate is set aside. The plaintiff is held entitled to a sum of Rs. 22,159/- for reconstruction of Gharat and water intake tank. The plaintiff has relied upon the estimate Ext. PW-2/D prepared by PW-2 Shri R.B. Saxena in respect of damages for the cowshed. The defendant has relied upon statements Exts. D-7, D- 8 and D-9. The plaintiff has claimed that cowshed was double storeyed. The learned District Judge has recorded a finding that the cowshed was single storeyed only on the ground that PW-2 Shri Hira Mani has not deposed that the cowshed was double storeyed. In these circumstances, the version of the defendant that the value of the cowshed was Rs. 1754/- cannot be accepted. The defendant has not led any evidence to prove on record that the cowshed was single storeyed. The findings recorded by the learned District Judge that the cowshed was single storeyed is liable to be interfered with. The plaintiff is held entitled to a sum of Rs. 22,159/- assessed by PW-2 vide Ext. PW-2/D. 7 The plaintiff has also incurred damages due to fall of debris on the retaining wall. PW-2 has estimated the value of the construction of the new wall vide Ext. PW-2/C. The value worked out by him is Rs. 2792/-. The value worked out by the defendant vide Ext. D-13 is Rs. 750/-. It was necessary for the defendant to put a suggestion to Shri R.B. Saxena about the length of retaining wall which according to him is 1810’x2.5”. Accordingly, the plaintiff is held entitled to a sum of Rs. 2792/- for reconstruction of retaining wall. The plaintiff has claimed damages for causing damages to A.C. cemented pipe line. He has relied upon estimate Ext. PW-2/E prepared by Shri R.B. Saxena. According to him, a sum of Rs. 1525/- was required for providing A.C. pressure pipe of 150 mm (six inches diameter) for main water line from the Khad to the intake tank of Gharat. According to the defendant, plaintiff was entitled to only a sum of Rs. 400/-. The plaintiff’s case was that dia of the pipe was six inches and according to defendant, it was four inches having length of eighteen feet. Plaintiff’s witnesses have not been cross-examined by the defendant to ascertain the exact dia of the pipe. The findings recorded by the learned District Judge that dia of the pipe was only four inchs and not six inchs is liable to be set aside. The plaintiff is entitled to a sum of Rs. 1525/- on the basis of Ext. PW-2/E. The plaintiff has also claimed a sum of Rs. 25,440/- for the loss of crops at the rate of Rs. 1590/- per crop. According to the plaintiff, she used to grow two crops per year on the suit land. It is evident from the copy of Jamabandi for the year 1976-1977 Ext. P4 8 that land comprising Khasra Nos. 45,49,74,91 and 94, the suit land was cultivated. It is borne out from the revenue entries and the statements of witnesses that the land was earlier being cultivated and after construction of the road, due to debris, the same became ‘Banjar Kadim’. The plaintiff has claimed damages to the extent of Rs. 25,440/- for recurring loss of income from the suit land at the rate of Rs. 1590/- per crop (two crops per year). She has been paid Rs. 1590/- on account of damages to the crop when she had filed the civil writ petition in this Court claiming damages. The defendant has not led any evidence to prove the contrary. The learned District Judge has erred in law by not awarding any damages for the loss of crops. Accordingly, the plaintiff is held entitled to a sum of Rs. 25,440/- for recurring loss of income from the suit land @ Rs. 1590/- per crop. The learned District Judge has upheld the compensation on account of loss of income from the Gharat amounting to Rs. 6,000/-. The defendant has examined three official witnesses, i.e. DW-1 Shri V.P. Kapoor, Executive Engineer, DW-2 Shri Bhuri Singh, Junior Engineer and DW-3 Shri M.S. Verma, Junior Engineer. DW-1 was not Officer-in-charge when the road was constructed. He was posted in Kumarsain from 1982 to 1986. Similarly, DW-2, Junior Engineer has joined the Sub Division at the time when the road had already been constructed and damage was caused to the property of the plaintiff. The statement of DW-3 is contrary to the entries in the record of rights and statement of PW-4 Shri Bhag Chand, Patwari and PW-2 Shri R.B. Saxena expert witnesses. 9 The learned District Judge has misread and misconstrued the oral and documentary evidence while reducing the damages. Consequently, in view of the observations made hereinabove, the judgment and decree passed by the learned District Judge is liable to be set aside. Accordingly, the regular second appeal is allowed. The judgment and decree dated 12.10.1998 passed by the learned District Judge is set aside. The judgment and decree passed by the learned Sub Judge dated 19.1.1993 is restored. No costs. (Rajiv Sharma), J. 4.8. 2009. (cr)