HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 113 of 1997 Reserved on: 25.2.2008 Decided on: 27.2.2008 Hemo ………Appellant. Versus Amro and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.N.K. Thakur, Advocate. For respondent No.1: None. V.K. Ahuja, J: This is second appeal filed by the appellant against the judgment and decree of the court of learned District Judge, Chamba, dated 19.12.1996, affirming the findings of learned Sub Judge, Chamba, dated 21.6.1993, decreeing the suit for permanent prohibitory injunction and for recovery of Rs.3,000/- as damages, as against the appellant and others. Respondent as plaintiff filed a suit for permanent prohibitory and for recovery of Rs.3,000/- as damages, as against the appellant alleging that she was owner in possession of the suit land and as the defendants were interfering ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - in her possession, the suit for injunction was filed. The plaintiff also prayed that since the defendants have forcibly cut the maize crop as well as grass from the suit land worth Rs.3,000/-, she is entitled to a decree for damages to this extent also. Defendants denied the allegations. The suit was decreed by the learned Trial Court which findings were affirmed by the ld. First Appellate Court. In so far as the relief of permanent prohibitory injunction is concerned, which was granted by both the courts below as against the appellant, the learned counsel for the appellant has not challenged these findings. During the course of arguments, he has only confined his arguments to the extent that the plaintiff had failed to prove the damages and that these were caused to the extent of Rs.3,000/-. The appeal was admitted on substantial questions of law including the question that there was misreading of evidence by both the courts below and accordingly on this substantial question of law there has to be reappraisal of evidence since both the courts below have not discussed the evidence properly. The plaintiff had alleged in regard to the loss caused to her that the defendants forcibly cut maize crop weighing 25 mounds and at the rate of Rs.100/- per mound, she suffered loss of Rs.2500/- and also claimed that the grass worth Rs.500/- was cut from the suit land. To substantiate these assertions, the plaintiff herself had stepped into witness box as PW-1 and stated that maize crop worth Rs.2500-3000/- was taken weighing 25-30 mounds and the rate was Rs.100/- per mound. She also stated that the grass worth Rs.1000- 1200/- was also taken by the defendants. The case of the plaintiff solely rests - 3 - upon the oral testimony of the plaintiff as PW-1 in regard to the extent of loss as well as on the price of the maize crop and grass. The learned Trial Court relied upon the testimony of PW-2 Gulab Singh, Pradhan of the Panchayat, who has simply stated that the report was lodged by the plaintiff in regard to cutting of grass and maize crop by the defendants. He clearly stated that the report was lodged in writing to him whereas the plaintiff as PW-1 has stated that the report was lodged orally. The statement of this witness was relied upon by the learned Trial Court though no copy of the report, which was lodged in this regard, was proved by the plaintiff on record. This witness has admitted that he is presently the Panchayat Pradhan and plaintiff’s husband was earlier the Pradhan of the Panchayat. In the absence of the copy of the said report, no reliance could have been placed on the statement of this witness, but the learned First Appellate Court neither discussed this evidence led by the plaintiff in regard to the quantity of maize crop or its price, nor the testimony of PW-2 Gulab Singh but affirmed the findings without referring to the specific evidence in this regard. Apart from the above, it was rightly submitted by the learned counsel for the appellant that the oral testimony of the appellant in regard to the extent of loss cannot be relied upon in the absence of naksa paidavar which had to be proved from the testimony of any revenue official. The plaintiff has not examined any revenue official who could prove as to how much maize crop was grown in the area and the rates prevalent in that year so that it could be determined as to what was the extent of loss caused to the plaintiff. The plaintiff had failed to substantiate his assertions in this regard by not examining - 4 - any expert and the oral testimony of the plaintiff cannot be said to be sufficient to hold that she was entitled to the amount. The learned Trial Court in its findings under Issue No.2 had observed that the extent of loss was Rs.2500/- but while granting the relief, it had mentioned that the loss was caused to the extent of Rs.3,000/-, which findings were against the findings recorded under Issue No.2. From above discussion, it follows that since there was misreading of evidence by both the courts below in regard to the extent of loss, therefore, the evidence has been re-appreciated by this Court and evidence led cannot be said to be sufficient to hold that the plaintiff was entitled to a sum of Rs.3,000/-, as damages. The findings of the learned courts below on this aspect are liable to be reversed, though the findings in regard to grant of injunction are liable to be affirmed which are affirmed accordingly. The appeal filed by the appellant is partly accepted and the findings recorded by the courts below granting the damages to the extent of Rs.3,000/- are liable to be set aside which are set aside accordingly. The parties are left to bear their own costs throughout. February 27, 2008. (V.K. Ahuja), (TILAK) Judge.