THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1159 of 1993 Date: 09.12.2010 Between: K. Narasimha Rao … Appellant And Jami Haranadham and others. … Respondents THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1159 of 1993 JUDGMENT : The 4th defendant in O.S.No.95 of 1987 on the file of the Principal Senior Civil Judge, Srikakulam, is the appellant herein. 2. The suit was filed by the plaintiff for recovery of compensation of Rs.1,25,000/- for illegally laying of road in his land. The allegations in the plaint go to show that the plaintiff is the absolute owner of Acs.2- 60 cents of land in Sy.No.274/2 of Gottipalli village in Narasannapeta old Taluk and Mandal and the present value is Rs.6,000/- per cent. In the first half of 1985, the 4th defendant, who is the appellant herein and a registered contractor, has dug and laid roads in an extent of Acs.0-20 cents belonging to the plaintiff and defendant Nos.1 to 3 did not acquire the land. The plaintiff also suffered expenses of Rs.5,000/- for closing of the pits and reclaiming the land left over. Inspite of legal notice and repeated claims, the defendants did not pay the money and, therefore, the suit. 3. The 1st defendant filed a written statement denying the allegations in the plaint and the value of the land. It was pleaded that there was an existing earthern road from Gottipalli to Narasannapet and the plaintiff and other neighbouring owners voluntarily agreed to give their lands for the formation of roads and some of the owners have executed a gift deed also and that the plaintiff did not execute any document, though agreed for the same. Therefore, in pursuance of the willingness of the land owners only the work was entrusted to the appellant herein, who formed the roads. As such, there is no need to pay any compensation and the question of payment of compensation in the civil suit does not arise. Therefore, the defendant pleaded for dismissal of the suit. 4. Though the appellant has filed a written statement subsequently, it was not taken on record on the ground that it was not filed within time. Thereafter the appellant has adopted the written statement of the 1st defendant. 5. On the basis of the above pleadings, the following issues have been framed for trial:-- 1) Whether the plaintiff is entitled for recovery of Rs.1,20,000/- from the defendants jointly and severally as compensation for the illegal use and occupation of Ac.0-20 cents of plaint schedule land? 2) Whether the plaintiff is entitled for a sum of Rs.5,000/- from the defendants for making the pits on the land and for incurring the amount by the plaintiff for re-filling the pits on it? 3) Whether the plaintiff and the adjacent land owners donated their lands for the formation of the road between Gottipalli to Narasannapeta, with their consent and the road was laid in public interest? 4) Whether the plaintiff waived his right to claim compensation by agreeing for the formation of the road through his land and is estopped to claim any compensation? 5) Whether the suit notice is proper and valid? 6) Whether the suit is barred by principles of estoppel and waiver? 7) To what relief? 6. On behalf of the plaintiff, PWs.1 to 3 were examined and marked Exs.A-1 to A-12. On behalf of the defendants, DWs.1 to 4 were examined and marked Exs.B-1 to B-11. After considering the evidence on record, the learned Senior Civil Judge came to the conclusion that only an extent of Ac.0-06 ½ cents was lost and the plaintiff was not the willing donor for formation of the roads. Consequently the learned Senior Civil Judge held that the actions of the defendants are not legal and granted the relief against all the defendants. Aggrieved by the said judgment, the present appeal is filed. 7. It is represented that the defendants 1 to 3 did not prefer any appeal and it has become final. 8. The points for consideration are— 1) Whether the appellant is liable to pay the decretal amount? 2) Whether the judgment and decree passed by the lower Court insofar as it relates to the appellant is sustainable? 3) To what relief? In re. Point Nos.1 to 3 : 9. Evidently, the appellant has been entrusted with the work of formation of roads by defendant Nos.1 to 3 and there is no ambiguity about it from the written statement filed by the 1st defendant. The appellant was, therefore, discharging the contractual obligation of the State, which was legally entrusted to him. The finding of the lower Court is that the action of the defendant Nos.1 to 3 in laying the road without any permission from the owner is illegal. The theory of the defendants that the plaintiff along with the other owners has donated the property is not accepted. Therefore, if any excess action is there, it is only at the instance of defendant Nos.1 to 3 and the appellant herein did not act personally to the prejudice of the plaintiff. Therefore, there cannot be any personal liability of the appellant when he has acted only at the instance of the State. It is not as though that the amount decreed against the State cannot be recovered and that the appellant should be made personally liable. 10. In view of the above circumstances and as the actions of the appellant being not illegal and are only at the instance of the State, he cannot be made liable to pay the compensation when the decree has already been passed against the State. The points are answered accordingly. 11. In the result, the appeal is allowed, setting aside the impugned judgment of the Court below, insofar as it relates to the liability of the appellant is concerned. Each party shall bear their own costs. ____________________________ N.R.L. NAGESWARA RAO, J 09.12.2010. Msr THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1159 of 1993 09.12.2010 (Msr)