IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 96 of 2000. Judgement reserved on 10th July, 2009. Date of Decision: 11th August, 2009. Smt. Geeta Kanwar .. Appellant. Versus State of HP and others .. Respondents. Coram The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellant: Mr. Karan Singh Kanwar, Advocate. For the respondents: Ms. Shubh Mahajan, Deputy Advocate General. V.K. Ahuja, J. This is an appeal filed by the appellant against the judgment and decree dated 23rd December, 1999 vide which the suit filed by the appellant as plaintiff for recovery of Rs.2,80,000/- as damages as well as for mandatory injunction was dismissed by the learned District Judge, Sirmaur at Nahan. Briefly stated, the facts of the case are that the original appellant Smt. Durgi Wati now represented by the present appellant, as plaintiff filed a suit for damages and for mandatory injunction as against the respondents, who were impleaded as defendants. It was alleged by the plaintiff that she is owner in possession of the land measuring 86- 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - 11 bighas in village Maryog, out of which land measuring 13-16 bighas was irrigated through a Kuhal. It was alleged that the Kuhal originates from Dali-Ka-Khala and reaches village Maryog through RCC pipes underneath Solan-Rajgarh road since 1977. It was further alleged that in February, 1994 the defendants started widening Solan-Rajgarh road and used heavy machineries for the purpose. It was further alleged that RCC pipes of the Kuhal underneath the road in question were broken and the Kuhal was damaged to a great extent and flow of water from it was completely blocked. Thus the water of the Kuhal did not reach the land of the plaintiff. The plaintiff made complaints to the authorities to restore the Kuhal to its original position. It was further alleged that the plaintiff had been cultivating the cash crops like tomatoes and peas in the irrigated land and was earning Rs.50,000/- per year but due to blockage of the Kuhal, the water did not reach her land and she could earn only Rs.10,000/- per annum and as such there was a recurring loss to the plaintiff to the extent of Rs.40,000/- per annum. This loss was assessed for three years at Rs.1,20,000/-. It was also alleged that while widening the road Public Works Department threw the debris in her adjoining land and her land became unfit for cultivation and the plaintiff was put to a wrongful loss of Rs.1 lac. The plaintiff also alleged that she had planted 200 fruit plants in the land in question, but the same were destroyed due to the debris thrown on her land and thus she had incurred the loss of Rs.60,000/-. Accordingly, the plaintiff filed a suit for recovery of Rs.2,80,000/- as damages as detailed above and also prayed for issuance of mandatory injunction directing the defendants to remove the debirs from her land and to restore the Kuhal to its original position. - 3 - The defendants did not dispute that the land of the plaintiff is situated in village Maryog and the Kuhal had been passing through RCC pipes. They pleaded that the road was completed in 1981-82 and no damage was caused due to widening of the road. It was alleged that the damage was caused due to heavy rains and local mischief and the Kuhal became dry due to natural calamities in the year 1993 and it became non-functional. It was also denied that any debris was thrown in the land of the plaintiff or it had become uncultivable. It was also denied that fruit plants of the plaintiff were damaged or destroyed due to widening of the road and as such they prayed for dismissal of the suit. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the plaintiff has suffered loss or damage because of the construction of road by defendants negligently, as alleged? OPP. 2. In case issue No.1 is proved in affirmative, to what amount of compensation the plaintiff is entitled to? OPP. 3. Whether the plaintiff is entitled to the relief of mandatory injunction regarding the restoration of water channel (Kuhal)? OPP. 4. Whether the plaintiff is entitled to the relief of mandatory injunction regarding the removal of debris from the land of the plaintiff? OPP. 5. Relief. Parties led their evidence and learned trial Court vide its impugned judgment decided all the issues as against the plaintiff and in - 4 - favour of the defendants and consequently dismissed the suit of the plaintiff in full. I have heard learned Counsel for the parties and have gone through the record. The submissions made by the learned Counsel for the appellant were that the plaintiff had written a letter Ex.P.3 dated 8th November, 1994 to the defendants who admitted that the Kuhal will be got repaired, but the same was not done. It was also submitted that there is a statement of the expert which applies to the private land also and it proves the extent of loss. Since there was a recurring loss to the plaintiff and debris were thrown in the land of the plaintiff, she is entitled to all the reliefs claimed by her in the suit, i.e. for getting the Kuhal repaired, for damages as well as for mandatory injunction and as such the findings of the learned trial Court to the contrary are liable to be reversed. On the other hand, learned Deputy Advocate General for the respondents had submitted that the plaintiff had failed to prove that any damage was caused to the Kuhal due to the act of the defendants. It was also submitted that there was no duty of the State to supply regular water and the plaintiff had failed to prove that she was entitled to water as a matter of right or that any loss was caused due to the act of the defendants and as such the findings of the learned trial Court do not call for any interference by this Court. On reappraisal of the judgment passed by the learned trial Court it is clear that after referring to a decision of the Apex Court, the learned trial Court had rightly concluded that to obtain - 5 - compensation in a suit for negligence as a tort, the onus is upon the plaintiff to prove the following ingredients:- a) A legal duty to exercise due care; b) Breach of duty ; and c) Consequential damages. The evidence led by the plaintiff as well as by the defendants has to be appreciated in the light of the above mentioned ingredients, whether they have been proved by the plaintiff or not. To prove the first point that the widening of the road was started in February, 1994, there is a statement of PW-1 Jit Singh Kanwar, Attorney of the plaintiff that the work of widening of the road was started in February, 1994 and he stated that it continued upto 1996 for which heavy machinery was used. DW-1 R.N. Mehta, S.D.O., admitted in his statement that the widening work started in February, 1994 and according to him the work was still going on when he made his statement in April, 1999. The plaintiff had relied upon letter Ex.P.3 dated 8th November, 1994. It is a letter written by the XEN to the Deputy Commissioner, Sirmour which was in reference to an application of one Baldev Singh of village Maryog and a copy of the same was also sent to said Baldev Singh. The said Baldev Singh is neither the plaintiff nor is the attorney of the plaintiff who had appeared in the witness box as PW-1. This clearly shows that in reference to an application of one Baldev Singh, XEN had reported that the IPH Department will be directed to remove the pipes and to refix the same on completion of the work. It was also mentioned that in so far as the Kuhal is concerned, it will be repaired on completion of work and steps will be taken not to - 6 - cause loss to any person. This is only a letter advisory in nature that the Department will take suitable action wherever necessary. This is not an undertaking given to the plaintiff at any time that the loss has been caused due to the act of the Department or action will be taken accordingly. I have also mentioned above that this letter was not written to the plaintiff but the same was endorsed to another person. Now coming to the loss caused to the Kuhal or pipes. PW-1 Jit Singh Kanwar, attorney of the plaintiff, has stated that the debris fell on the source of the Kuhal and the Kuhal was broken and no water was available to the land of the plaintiff. He is referring to the assurance given by the Department to remove the debris and to repair the pipes. But no such letter has been brought on record in which there was any admission and the only letter which has been proved in evidence has been referred to above. He further stated that cash crop was being grown over portion of land measuring 13 bighas 16 biswas and the annual income of the plaintiff was Rs.50,000/-, which has come to Rs.10,000/- in a year. He further stated that 200 fruit plants were destroyed and the production had been reduced due to fall of the debris. He also proved a copy of the representation Ex.P-2 and states that they have received letter Ex.P.3 which is not addressed to him or the plaintiff. He admitted that he has not kept any record of the loss and the plaintiff is fit to appear. He admitted that he had not taken any stay order from the Court at the time when the road was constructed. He denied that the Kuhal had dried in the year 1987-88 and still from the source three inch water is available. PW-2 Dr. R.L. Gautam, Agriculture Development Officer has been examined by the plaintiff. He stated that cash crop consisting - 7 - of peas and tomatoes was being grown and he is making the statement that in Kalladu in one bigha of land 35-40 quintals crop is grown. His statement is general and not specific about the land of the plaintiff. He admitted that he is posted at a distance of 40 kilometers from the land in question and he had been going on camps only in this village. He admitted that the production told by him is only in regard to the Government farm and the same cannot be applied to private land which is not managed as a government farm. His statement is general in nature only and does not help the plaintiff in any manner. PW-3 Rajinder Singh, Patwari, has proved the copy of Jamabandi for the year 1990-91, Ex.P-4 and admitted that the land gets water from a Kuhal which is a Government Kuhal. He stated that he went in the land in Kharif 1996 and found some debris in the land. No record has been brought by him from which he could make this statement. It appears that he is a convenient witness and has stated to help the plaintiff. He admitted that in the Girdwari from 1992 to 1996 peas had been grown on land measuring 1 bigha and 14 biswas and on the rest of the land wheat and maize crops had been grown, which is not a cash crop. This is all the evidence led by the plaintiff and even the plaintiff has not stepped into the witness box and the statement of her attorney is that of a witness. DW-1 R.N. Mehta, S.D.O., has stated that no debris was thrown in the land of the plaintiff. He stated that due to closure of water source no water is going from the Kuhal in 1989. He admitted that he has no specific record that the water stopped coming from the Kuhal in 1989. - 8 - From the above discussed evidence it is clear that the plaintiff had failed to prove by examining any co-villager to prove that the debris had been thrown in the land owned and possessed by the plaintiff. She has also failed to prove that how much loss has been caused to her and how much income the plaintiff was deriving from the agriculture produce. The plaintiff has also failed to prove that it was the duty of the State to provide her water through the Kuhal. There is no statement of any witness to show that the water through the Kuhal stopped coming due to falling of the debris and due to the acts of the defendants and the plaintiff suffered damages. The learned trial Court had discussed the evidence in detail and had come to a right conclusion that the plaintiff had failed to prove any damages and it had also declined to grant any relief to her. The findings of the learned trial Court on all the issues are based on correct appreciation of evidence and law and these do not call for any interference. I accordingly hold that there is no merit in the appeal, which is dismissed. However, the parties are left to bear their own costs. August 11, 2009 (rc) (V.K. Ahuja), Judge.