1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO. 234 OF 2009. Kundlik S/o Sonaji Adkine, Age 57 years, Occ.Agriculture, R/o Inajangaon, Taluka Basmatnagar, Dist. Hingoli. ... Appellant. Versus The State of Maharashtra and others ... Respondents. ... Mr.S.B.Ghatol Patil, advocate for the appellant. Mrs.V.A.More, A.G.P. for the Respondent Nos.1 and 2. Mr.H.M.Karwa, advocate for the Respondent Nos.3 and 4. ... CORAM : V.R.KINGAONKAR,J. Date : 13.11.2009. ORAL JUDGMENT : 1. This Second Appeal is directed against judgment rendered by learned District Judge, Basmathnagar, in an appeal (RCA No.25/2004), 2 whereby money decree for damages caused to Banana crop of the appellant came to be reversed. The only substantial question of law in this appeal is as follows : "Whether in the facts and circumstances of the present case, the first appellate Court committed patent error while reversing decree of the trial Court, ignoring the material evidence and overlooking the admissions of DW 1 Baliram in the context of existence of Banana crop in the plaintiff's land.?" 2. The appellant is original plaintiff. He filed suit for recovery of damages of Rs. 60,000/- (Rupees sixty thousand) from the respondents. He asserted that his borewell situated in land Gat No.110 was requisitioned by the Respondent Nos.1 and 2 during summer season for supply of drinking water to the villagers. He asserted that there were Banana plants in his land Gat No.110. He had incurred expenditure of 3 Rs.10,000/- (Rupees ten thousand) for plantation. The crop was ready for harvesting when the borewell was requisitioned vide letter dated 20.3.1992. The Respondent No.2 (Tahsildar) by letter dated 19.5.1992, directed the MSEB to disconnect the electricity supply of the motor pump installed on the borewell. Therefore, the electricity supply was disconnected by the MSEB. The plaintiff (appellant) alleged that he could not provide water to the Banana crop and, therefore,the crop was completely damaged. He suffered loss due to the acts of the Respondents and as such sought damages of Rs.60,000/- (Rupees sixty thousand). On appreciation of the evidence tendered by the parties, the trial Court held that Banana crop of the appellant was damaged due to the disconnection of the electricity supply and requisitioning of the well situated in his land Gat No.110. The amount of loss was estimated at Rs.24,880/- (Rupees twenty four thousand eight hundred eighty). The trial Court decreed the suit and directed the Respondent Nos.1 and 2 to pay the said amount along with interest at the rate of Rs.6% from the date of the suit till 4 realisation of the amount. 3. The first appellate Court, however, held that there was no Banana crop in the land of the appellant when the borewell was requisitioned. The first appellate Court gave much weightage to the testimony of DW 1 Baliram, who is the village Talathi. Consequently, the appeal was allowed and the suit came to be dismissed. 4. Heard learned counsel for the parties and learned A.G.P. 5. I have gone through the record and proceedings with the assistance of the learned counsel and learned A.G.P. It appears from the entries in the 7/12 extract (Exh.63) that there was Banana crop in the land Gat No.110 for the year 1991-92. It is of common knowledge that Banana crop is not required to be planted each year and there is continuity of yield given by the Banana plants for at least a couple of years. Therefore, it could not be said that in 5 the month of March 1992, such entry in the 7/12 record was irrelevant. The testimony of DW Baliram (Talathi) no doubt indicates that at the time of requisition of the well, panchanama was drawn. His version shows that at the time of requisition, there was chilli crop standing in the land Gat No.110 but there was no Banana crop. He reported accordingly to the Tahsildar vide letter Exh.90. This statement of DW Baliram could not have been considered without having regard to his cross-examination. The first appellate Court seems to have overlooked his cross-examination. In his cross-examination, DW Baliram admits, unequivocally, that 7/12 extract (Exh.63) indicates presence of Banana crop . He further admits that the said crops have been mentioned by him after visiting the spot. He is the author of the entries in the 7/12 extract (Exh.63) which he clearly admitted to be true one. He further admits that when the Government used to acquire private borewell, then compensation is required to be given to the private owner of the well. He further admits that the Government has to pay compensation or 6 damages caused to the Banana crop in the field of the plaintiff. The plaintiff examined himself in support of the suit claim. He also placed on record report drawn by Horticultural expert. The report (Exh.64) is duly corroborated by PW Ankush. The report was prepared on 15.6.1992 after visit to the land in question. There is no substantial reason to dislodge the testimony of the independent witness i.e. PW Ankush in this behalf. 6. There is no dispute about the fact that the borewell was requisitioned at the relevant time. There is also no dispute about the fact that the Tahsildar informed the MSEB to disconnect the electricity supply of the borewell and, therefore, at least for about one week the irrigation facility was unavailable for the plaintiff's land Gat No.110. There is nothing on record to show that the Banana crops could have survived without irrigation for such a period of about one week. The trial Court duly assessed the probable damages caused to the crop and payable to the plaintiff. Considering these 7 aspects, it is explicit that the first appellate Court completely overlooked the admissions of DW Baliram which were extracted through his cross- examination and proceeded to decide the appeal only on the basis of his examination-in-chief. This is exactly where the perversity lies. Considering these aspects, I am inclined to hold that the judgment of the first appellate Court is unsustainable. 7. In the result, the Second Appeal is allowed. The impugned judgment of the first appellate Court is set aside and that of the trial Court is restored. The appellant to recover costs of both the appellate Courts as well the trial Court from the Respondent No.1. (V.R.KINGAONKAR,J.) asp/office/sa23409 Authenticated Copy (Pvt.Secy. to Hon'ble Judge)