Himachal Pradesh High Court
Abhishek & Others vs State Of Himachal Pradesh on 8 July, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
RSA No.217 of 2006
Date of Decision: 8th July, 2016.
.
Abhishek & others ....Appellants.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
of
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Appellants : Mr. B.N.Mehta, Advocate.
rt
For the Respondent: Mr. Rupinder Singh Thakur,
Additional Advocate General
with Mr. Rajat Chauhan, Law
Officer.
Sandeep Sharma, Judge (Oral)
Present Regular Second Appeal filed under Section 100 of Code of Civil Procedure is directed against the judgment and decree dated 21.11.2005, passed by learned District Judge, Shimla, H.P in Civil Appeal No.73-S/13 of 2005, reversing the judgment and decree dated 30.3.2005, passed by learned Civil Judge( Junior Division), Theog, District Shimla, H.P. in civil Suit No.121/1 of 2003.
2. Briefly stated facts as emerge from the record are that present appellant (hereinafter referred to as "Plaintiff") filed a suit for recovery of Rs.50,000/- along with cost and Whether reporters of the local papers may be allowed to see the judgment?
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interest at the rate of 15% against the respondent(hereinafter referred to as "Defendant") averring therein that plaintiff is .
the exclusive owner in possession of the land denoted by khasra No. 338, measuring 0-04-04 hectares (11 biswas), situated in Chak Guthan Khas, Tehsil Theog, District Shimla, H.P. He also claimed to be exclusive owner of khasra No. 335, measuring 0-02-84 hectares ( 9 biswas) situated in same of chak. The plaintiff being exclusive owner of the aforesaid khasra numbers alleged that about 4-5 years back, rt defendant constructed a motorable road known as "Mahori-
Guthan-Sharmala" road, which passes through part of khasra No.335, which is just below khasra No.338 of the plaintiff. Plaintiff averred that during construction of aforesaid road through khasra No.335 of the plaintiff, defendant resorted to deep digging, which resulted in removal of earth below the land comprised in khasra No.338. The plaintiff also averred that as a result of aforesaid digging carried out by the defendant for the construction of road, landslides every year in land comprising khasra No.338 and causes damage to the land as well as apple plants situated over khasra number. As per plaintiff aforesaid process of sliding, continued every year after construction of road and defendant despite several requests failed to construct support/ breast wall along with the road which passes ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...3...
through khasra No.338, so that damage to the valuable property of the plaintiff could be avoided. Since plaintiff had .
to construct his residential house over khasra No.338, he repeatedly requests the defendant to construct support/breast wall on the spot. In October/ November, 1997-98, eight fruit bearing apple trees having age of 20 years got damaged due to widening process and land-slides of occurred at the spot, which is below khasra No.338, causing huge financial loss to the tune of Rs.20,000/- to the plaintiff.
rt As per averments contained in the plaint plaintiff many times requested the officials of the defendant for construction of support/ breast wall on the spot i.e. boundary of khasra Nos.
335 and 338, but all in vain. Finally in the year 1999 defendant prepared the estimate for the construction of breast wall and sent the same to the Deputy Commissioner, Shimla for allocation of funds. But fact remains that no steps, whatsoever, were taken by the defendant to construct the retaining wall on the spot. Finally, plaintiff on 5.9.1998 got the legal notice issued under Section 80 C.P.C to the defendant advising them to construct breast wall but defendant paid no heed to the advice/ request of plaintiff.
Hence, plaintiff left with no other option but to construct the breast wall on his own expenditure.
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3. The plaintiff constructed breast wall on the spot which is 50 feet long, 14 feet in height and 3 to 4 feet in .
width with stone and cement in the month of June, 2000.
The plaintiff also got the value assessed of breast wall constructed by him from J.E, H.P.PWD Mahori, Tehsil Theog, which was assessed as of Rs. 50,780/-. Thereafter, the plaintiff requested the officers of the defendant to make of the payment qua the amount spent by him for the construction of breast wall, but no response whatsoever, was rt given by the defendant, compelling the plaintiff to issue legal notice under Section 80 CPC for payment of the amount.
Since nothing was heard in response to the legal notice issued under Section 80 CPC, plaintiff was constrained to file a suit for recovery in the Court of learned Civil Judge( Jr. Division) Theog, District Shimla, HP.
4. Perusal of the record made available to the Court suggest that the defendant filed written statement and raised various preliminary objections qua maintainability, locus-
standi, cause of action, limitation and that of estoppel. On merits, defendant averred that "Mahori-Guthan-Sharmala"
road was constructed by PWD in the year, 1996-97 on the persistent demand of the public of that area and while carrying out the cutting work, all precautionary measures were taken into consideration to ensure that no damage is ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...5...
caused to the private lands on the upper side of the road.
Defendant also averred that, wherever it was necessary, .
breast/support wall was constructed. As per defendant, since portion of the land of the plaintiff adjacent to the road was not having emergent necessity of providing any breast/ support wall as the strata of the land was very stable, no retaining wall was constructed by the Department at that of time. The defendant also averred that no damage, whatsoever, was ever assessed by any authority. Neither rt damage was assessed nor did petitioner himself submitted any report of damage. Now after a gap of 5-6 years, the entire strata of earth in that area has become completely stable and till date no sliding has been reported by any of the field officials of the defendant. Since there was no such necessity with regard to the land of the plaintiff to provide retaining wall, no support/breast wall was constructed. Rather, defendant alleged that the plaintiff constructed the approach road to Guthan temple, which actually disturbed the natural support of his land. The wall, if any, constructed by plaintiff, therefore, is at the risk and cost of the plaintiff and defendant cannot be compelled to make any compensation qua the same.::: Downloaded on - 15/04/2017 20:47:02 :::HCHP
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5. The learned Trial Court below on the basis of the pleadings available on record, framed the following issues on .
15.11.2003:-
1. Whether the plaintiff is entitled for the recovery of Rs.50,000/-,as alleged? OPP
2. Whether the suit is not maintainable?
OPD.
of
3. Whether the suit of the plaintiff is barred by limitation? OPD.
4. Whether the plaintiff is stopped from rt filing the suit due to his act and conduct?
OPD.
5. Relief:-
6. Subsequently, on the basis of the evidence available on record, leaned trial court decreed the suit of the plaintiff for the recovery of Rs. 50,000/- along with costs and interest at the rate of 9% per annum, pendente-lite and future, till realization of the entire amount.
7. Respondent-State being aggrieved and dissatisfied with the judgment and decree dated 30-3-2005, filed an appeal in the Court of learned District Judge, Shimla under Section 96 of the Code of Civil Procedure, which was allowed and impugned judgment and decree passed by the learned trial Court was set-aside. Hence, present appeal has been preferred by the plaintiff being ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...7...
dissatisfied with the judgment and decree passed by learned first appellate Court.
.
8. This Court vide order dated 8.9.2006, admitted the instant appeal on the following substantial question of law:-
1. Whether the first appellate court's finding that the suit out of which the appeal that of was filed in his Court had arisen, was barred by the rules of resjudicata?
9. rtMr. B.N. Mehta, learned counsel representing the appellant vehemently argued that the impugned judgment and decree passed by learned first appellate Court is against law and facts and same is not sustainable in the eyes of law and as such, same deserves to be quashed and set-aside. It is contended on behalf of the appellant that learned first appellate Court without issuing/assigning any plausible and cogent reasons set-aside the impugned judgment and decree passed by learned trial court, which was passed on the correct appreciation of the evidence available on record and as such, great prejudice has been caused to the plaintiff. Mr. Mehta, forcibly contended that the findings of the learned first appellate Court that the present second suit is barred by resjudicata is not based upon the correct appreciation of the law as well as facts on record. As per Mr. Mehta, when earlier ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...8...
civil suit was filed by the plaintiff claiming Rs. 2,00,000/-, no further damages, if any, was caused to his land comprising .
of khasra No.338. It is only during the pendency of earlier suit other portion of the land comprised in khasra No.338 was damaged and as such, he was compelled to file second suit for recovery of damages of Rs.50,000/- from the defendant.
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10. Mr. Mehta, also contended that during the pendency of the appeal, request was made on behalf of the rt appellant that both the appeals may kindly be tagged and heard together but the same request was turned down by learned District Judge. Mr. Mehta, further contended that had the learned District Judge tagged both the appeals at that time, entire matter would have been clinched and judgment and decree as passed in this case by the learned trial Court would have not been passed by the learned District Judge after seeing the facts, as narrated in the earlier suit filed by the present plaintiff.
11. Mr. Rupinder Singh Thakur, learned Additional Advocate General duly assisted by Mr. Rajat Chauhan, Law Officer, representing the respondent-State supported the judgment and decree passed by learned first appellate Court.
He contended that bare perusal of the judgment and decree, passed by learned first appellate Court suggest that the same ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...9...
is based upon the correct appreciation of the evidence available on record. Mr. Thakur, also contended on behalf of .
the respondent-State that the plaintiff filed second civil suit in the court of learned Civil Judge( Jr. Division) Theog, District Shimla on same and similar facts/ circumstances and did not approach the Court with clean hands,rather by twisting the facts claimed an amount of Rs. 50,000/- on of account of damages to the same portion of the land comprising in khasra No.338 despite knowing fully well that rt compensation on account of damage to that portion of the land has been already awarded by the trial Court below in Civil Suit No.114-1 of 2000 and as such, present appeal deserves to be dismissed.
12. Mr. Thakur, forcibly contended that it stands duly proved on record that the present appellant had already received an amount of Rs.2,00,000/- on account of damages caused to his portion of land comprising khasra No.338 and as such, there was no occasion for him to file another suit claiming damages to the extent of Rs. 50,000/-.
13. Since the instant appeal has been admitted on the substantial question of law as formulated above, first and foremost endeavor of this Court would be to ascertain the genuineness and correctness of the findings returned by the Courts below, whereby learned appellate Court while ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...10...
accepting the appeal preferred on behalf of the respondent concluded that second suit filed by the plaintiff is clearly .
barred under the law as he had already received damages for the loss caused to the land and apple bearing trees as well as expenditure incurred by him for construction of retaining wall in the suit previously instituted by him against the defendant.
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14. From the careful perusal of the pleadings available on record, it is ample clear that Mahori-Guthan-
rt Sharmala road was constructed by the defendant between 1996-97 and in this process part of land belonging to plaintiff comprising khasra No.335 was also used by the defendant.
The land comprising khasra No.335 is on the lower side and another plot of the plaintiff comprising khasra No.338 having apple orchard is on the upper side of the road. It is also undisputed that during the construction of the road damage was caused to some portion of land pertaining to the plaintiff.
The defendant in the written statement has not disputed the fact with regard to construction of the road through the land of the plaintiff but have disputed the claim of the plaintiff with regard to construction of retaining wall on the expenditure of the plaintiff at the spot.
15. By way of present suit i.e. Civil Suit No.121/1 of 2003, plaintiff has claimed himself to be owner of the land ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...11...
comprised of khasra Nos. 335 and 338, measuring 11 biswas situated in Chak Guthan Khas, Tehsil Theog, District Shimla.
.
The plaintiff while claiming compensation on account of the damages caused to the land as well as expenditure incurred by him for constructing the retaining wall to protect his land has also averred that 4-5 years back defendant constructed a motorable road namely Mahori-Guthan-Sharmala road and of due to deep digging of khasra No.335, actual support of upper side of khasra No.338 got removed. It is also alleged rt that land of khasra No.338 started sliding every year due to construction and widening of the road between 1997 to 1999, as a result of which, fruit bearing apple trees were damaged.
Since the defendant failed to erect breast wall to project the land of khasra No.338, 8 fruit bearing apple trees were damaged due to sliding down of land, causing loss to the tune of Rs.20,000/- to him. Plaintiff also claimed that since the defendant failed to construct the retaining wall despite repeated request, he got the retaining wall, which is 50 feet long, 14 feet in height and 3 to 4 feet in width, constructed after incurring expenditure of Rs.50,780/-.
16. The learned trial Court on the basis of evidence available on record, decreed the suit of the plaintiff and held him entitled to the amount claimed in the suit. The ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...12...
defendants by way of appeal before learned District Judge, Shimla challenged the judgment and decree dated 30.3.2005 .
on various grounds. However, perusal of judgment and decree dated 21.11.2005, passed by learned first appellate Court suggest that factum of passing of judgment and decree by the learned trial Court in Civil Suit No.114-1 of 2000 by learned Civil Judge(Junior Division) Theog, holding the of plaintiff entitled for recovery of damages of Rs.2,00,000/-
weighed heavily with the learned District Judge while rt allowing the appeal No.73-S/13 of 2005 preferred by defendant-State. It may be noticed that judgment dated 21.11.2005 passed by learned first appellate Court in Civil Appeal No. 73-S/13 of 2005 is the subject matter of the present appeal before this Court. At this stage, it would be apt to reproduce para No.17 to 20 of the judgment dated 21.11.2005, passed by learned District Judge, Shimla for better understanding of facts and circumstances, which compelled/persuaded the learned District Judge to allow the appeal preferred by defendant-State:-
"17. One more aspect which has very much nexus with the present suit and ignored by the learned trial court, may be taken note of . Earlier, the plaintiff had also filed Civil Suit No.114/1 of 2000 before the learned Civil Judge( Jr. ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...13...
Division), Theog against the defendant for recovery of damages of Rs.2,00,000/- That suit in his favour was decreed on .
27th April, 2004 as is apparent from copy of the judgment Ex.PJ. In that suit, plaintiff had claimed damages of Rs. 2, 00,000/- to his property comprised in khasra No.338 including loss of eight apple trees, damages on account of deep of cutting of his land of khasra No.338 for making construction of a road through land rt of khasra No.335. It was mentioned in that suit by the plaintiff that 4-5 years ago, defendant constructed motorable road Mahori- Guthan-Sharmala on part of his land of khasra No.335 located below his land of khasra No.338. Due to deep cutting, natural support to the land of the plaintiff on the boundary of khasra No.335 started sliding down every year.
After construction of the road and widening process in 1997 to 1999, apple orchard of the plaintiff was damaged.
Because defendant had failed to construct the breast wall due to danger to the wall. He could not construct a residential house on his land, eight apple trees of the age of 20 years in November, 1997 due to widening of the road was also got damaged causing loss ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...14...
of Rs.20,000/-. Had requested defendant to construct the breast wall but in vain. To protect the property, he himself in .
October, 1999 constructed the breast wall. He demanded cost of breast wall from the defendant, but to no conclusion. That suit was contested by the defendant. However, on merit, suit of the plaintiff for damages of Rs.
of 2,00,000/- was decreed, vide judgment and decree, dated 27th April, 2004.
18. rt Thus, it is apparent from that judgment that for damages of the eight apple trees, plaintiff had claimed in previous suit compensation from the defendant and also had sought compensation for damages to his land of khasra No.338 and also cost for erection of breast/support wall to the land of khasra No.338. That breast wall was already erected by him in 1999 before filing the suit. Cost of erection of breast wall in that suit was claimed by him.
19. In para-13 of that judgment, the learned court had held that the plaintiff had assessed loss for the apple trees rightly along with cost of construction of the breast wall. Then, concluded that plaintiff had rightly claimed Rs. 2,00,000/-. Hence, the suit in entirety ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...15...
for Rs. 2,00,000/- in favour of the plaintiff was decreed.
20. During pendency of that previous .
suit No.114/1 of 2000, the plaintiff filed the present suit on 30th May, 2003 again for recovery of Rs. 50,000/- as the cost of breast wall erected by him. For the cost of that breast wall, he had earlier filed civil suit No.18th August, 2001 and of had obtained decree of damages of Rs.2,00,000/- on 27th April, 2004. He again, as such, took double benefit. The rt learned trial court failed to appreciate such aspect. No double benefit could have been granted to the plaintiff. Firstly in Civil Suit No.114/1 of 2000, he got decree for Rs. 2,00,000/- inclusive for the cost of breast wall.
Subsequently, filed the present suit No.121/1 of 2003 for recovery of Rs.
50,000/- as cost of the breast wall.
Hence, his present second suit was clearly barred under the law. The learned Court, as such, erred legally as well as factually by decreeing the present suit. Because damages for such loss were already obtained by him in previously instituted suit against the defendant. Consequently, decree is not sustainable and deserve to be set-aside after allowing the appeal."::: Downloaded on - 15/04/2017 20:47:02 :::HCHP
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17. Careful perusal of aforesaid findings returned by .
learned District Judge in Civil Appeal No.73-S/13 of 2005 clearly suggest that the plaintiff had also filed Civil Suit No.114-1 of 2000 before learned Civil Judge( Jr. Division), Theog against same defendant's for recovery of damages to the tune of Rs. 2,00,000/-. Aforesaid suit was decreed in of favour of the plaintiff on 27.4.2004 as emerge from the perusal of EX.PJ. The learned District Judge has rt categorically returned the findings that during the pendency of that previous suit No. 114-1 of 2000, plaintiff filed the present suit on 30th May, 2003 for recovery of Rs. 50,000/-
as cost of breast wall erected by him, for which he had already filed Civil suit on 18.8.2000 and had obtained decree for recovery of damages of Rs. 2,00,000/- on 27.4.2004.
Learned first appellate Court also concluded that plaintiff firstly in Civil Suit No.114-1 of 2000, procured decree for recovery of Rs. 2,00,000/- inclusive all qua the cost of breast wall and subsequently by filing civil Suit No.121/1 of 2003 again procured decree of Rs. 50,000/- on account of the cost of breast wall. Finally, learned first appellate Court while allowing the appeal preferred by the defendant State of H.P held that second suit i.e Civil Suit No.121/1 of 2003 filed by ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...17...
the plaintiff is clearly barred under law as no double benefit can be granted to the plaintiff qua the same cause of action.
.
18. At this stage, learned counsel representing the appellant stated that Civil suit No.121-1/2003 was filed subsequently before the learned Civil Judge (Jr. Division) Theog, for recovery of damages of Rs. 50,000/- because during the pendency of the earlier civil suit No.114-1/2000 of further damage was caused to the land of the plaintiff comprising in khasra No.338 and as such, to protect the rt same he during the pendency of the earlier suit constructed another retaining wall by spending Rs. 50,780/- and as such, prayed that the findings of the learned first appellate Court that second suit filed by the plaintiff is barred being contrary to the facts available on record as well as law deserves to be quashed and set-aside.
19. With a view to substantiate his aforesaid plea, leaned counsel representing the plaintiff invited the attention of the Court to the statements of the witnesses adduced by him on record. During arguments, having been made by him, he made this Court to travel through the depositions of PW-1, PW-2, PW-3 and PW-5 to demonstrate that due to construction of the road by the defendant, upper side of the road of the plaintiff got loosened and resulted in continuous sliding of the road causing damages to the land and orchard ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...18...
of the plaintiff. Specifically, he invited the attention of the Court to the statement of PW-4, Ajay Kashyap, Additional .
Assistant Engineer to demonstrate that he on his application moved on 18.9.1999 to Executive Engineer, Theog Division, got estimate prepared for erecting breast wall so that he could construct the house on his land. As per plaintiff, estimate of Rs.45,619/- was prepared by the official of the of defendant vide Ex.PW4/C, which was forwarded to the Executive Engineer,vide Ex.PW4/B, dated 4.2.1999. Though, Executive rt Engineer had sought funds from Deputy Commissioner but no funds were made available and as such, plaintiff was compelled to erect breast wall to protect his land comprising khasra No. 338 by spending Rs.
50,780/-.
20. Mr. Mehta, learned counsel stated that since further damage was caused to the land during the pendency of the earlier suit filed by plaintiff, he had no option but to construct retaining wall by spending Rs. 50,780/- and as such, plaintiff was well within its right to file fresh civil Suit No.121-1 of 2003 for recovery of amount spent by him for construction of retaining wall. He prayed that findings returned by the Court below that second suit is barred under law is totally contrary to the facts as well as law.
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21. This Court with a view to test the correctness and genuineness of the submissions having been made on .
behalf of the learned counsel representing the plaintiff referred to the pleadings available on record. Incidentally, this Court while perusing the record of the connected matters i.e. RSA No. 576 of 2007, could lay its hand to the plaint of the earlier Civil Suit bearing No.114-1/2000 filed by plaintiff of namely Sh.Deep Ram. It may be noticed here that vide order dated 20.6.2016, this Court on the request having been made rt by learned counsel representing the plaintiff had ordered for tagging of RSA No.217 of 2006, RSA No.576 of 2007 and RSA No.146 of 2008 since common question of law as well as facts are/were involved in these appeals.
22. Careful perusal of averments contained in Civil Suit No.114-1/2000 suggest that plaintiff had filed suit for recovery of Rs. 2,00,000/- along with interest at the rate of 15% per annum against the defendant by stating that he is exclusive owner in possession of land denoted khasra No.338, measuring 0-04-04 hectares(11 biswas) situated in chak Guthan Khas, Tehsil Theog, District Shimla, H.P. He also claimed himself to be exclusive owner of khasra No.335, measuring 0-02-84 hectares( 9 biswas) situated in same chak. In the case referred above, plaintiff claimed himself to be exclusive owner of aforesaid land and stated that about 4- ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...20...
5 years back, defendant had constructed a motorable road known as Mahori-Guthan-Sharmala road on the part of .
khasra No.335, which is below khasra No.338. Plaintiff in suit referred above also stated that after construction of road through his land natural support to the land on the boundary of khara Nos.338 and 335 started sliding down every year after construction of road due to deep digging, of which ultimately resulted in damage to the suit land as well as apple plants situated thereon. It has been specifically rt averred in that plaint that in October/November, his fruit bearing apple trees having age of 20 years were damaged due to widening process of the road and in that process he suffered loss to the tune of Rs. 20,000/-. The plaintiff specifically stated that despite repeated request, official of the defendant failed to construct the breast wall on the spot on the boundary of khasra Nos. 338 and 335 but all in vain, and as such, he was compelled to construct the retaining wall on the spot, which is 50 feet long, 14 feet in height and 3 to 4 feet in width.
23. Now before adverting to the findings returned by learned first appellate Court while allowing the appeal arising out of civil suit No. 121-1 of 2003, wherein learned District Judge, concluded that the present second suit was clearly barred under law, it would be apt to peep into the plaint ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...21...
made by the plaintiff in civil Suit No.121-1/2003, wherein when he claimed an amount of Rs. 50,000/- on account of .
expenditure incurred on the construction of retaining wall.
Relevant para of which is reproduced as under:-
"1. That the plaintiff is exclusive owner in possession of the land denoted by khasra No.338, measuring 0-04-04 of hectares (11 biswas) of chak Guthan Khas, tehsil Theog, District Shimla, HP. The plaintiff is also exclusive owner of rt khasra No.335, measuring 0-02-84 hectares(9 biswas) of chak Guthan Khas, Tehsil Theog. The plaintiff is also recorded as such in the revenue record of Chak Guthan Khas, Tehsil Theog. The plaintiff is exclusive owner of the land referred above by virtue of partition among his co-sharers and mutation No.8 of Chak Guthan Khas has been attested in favour of the plaintiff. The land referred above hereinafter referred to as the suit land.
2. That the State of H.P constructed a motorable road known as Mahori- Guthan-Sharmala road about 4-5 years back on part of khasra No.335 of Chak Guthan Khas, which is below khasra No.338 of the above chak.
3. That after construction of the road from the land of the plaintiff, due ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...22...
to deep digging and removal of natural support to the land of the plaintiff, the land of the plaintiff on the boundary of .
khasra No.338 and 335 started sliding down every year after the construction of the road and widening process in the years 1997-1999, which resulted in damage to the land of the plaintiff denoted by khasra No.338 and apple of plaints. This was continue process every year as the defendant failed to construct support/breast wall to the rt land of the plaintiff and there was imminent danger to the remaining portion of the valuable land of the plaintiff and the plaintiff was not in a position to construct a residential house on his land referred above for want of support wall/breast wall by the defendant. In the year of 1997 in October/November, 1997, eight fruit bearing apple plants about 20 years of age were also damaged due to widening process of the road and land slides.
The value of trees are more than
Rs.20,000/-
5. That the plaintiff served a
registered postal notice dated 05-09- 1998 under Section 80 of CPC to the defendant and requested for the construction of breast wall immediately ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...23...
as the plaintiff was suffering huge loss and enough land of the plaintiff was already slipped down and further .
requested, if the defendant failed to provide the wall as referred above. The plaintiff will have no option but to construct breast wall at the cost of the defendant. The said notice was duly received by the defendant and despite of service of the notice referred above and further many repeated requests of the plaintiff rt the defendant failed to provide breast wall on the spot as desired. The plaintiff had no option but to construct breast wall on the spot about 50 feet long, 14 feet in height and 3 to 4 feet in width with stone and cement in the month of June, 2000. The plaintiff got prepared estimate as to the value of construction of said wall from J.E.H.P, PWD, Mahori, Tehsil Theog. The cost of the said wall comes to Rs. 50,780/-. The plaintiff also requested the officials of the defendant to pay this amount to the plaintiff and further requested to construct breast wall on remaining portion of the land, as referred above. The requests of the plaintiff in this behalf were evaded till today. The defendant under the legal and moral obligation was bound to ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...24...
construct the breast wall and to prevent continue damage to the land of the plaintiff and is liable to pay cost of .
construction of the said wall to the plaintiff. The plaintiff lawfully constructed the breast wall and never intended to do it gratuitously and the defendant also benefited by construction of such wall as it was the of duty of the defendant to construct the wall and the plaintiff is entitled for the rt compensation and cost of construction of such wall and the defendant is liable to pay this amount to the plaintiff with interest @ 15%."
24. Careful perusal of aforesaid contents made in the plaint of Civil Suit No.121-1 of 2003, leaves no doubt in the mind of this Court that the findings of learned first appellate Court is based upon the correct appreciation of pleadings available on record. It clearly emerge after reading the contents of both the plaints filed in Civil Suit No.114-1-2000 and 121-1-2003 that the plaintiff has filed second civil suit No.121-1 of 2003 on similar facts and circumstances on the basis of which, earlier civil suit No.114-1 of 2000 was filed by the plaintiff. This Court had an occasion to go through the plaints filed by one and same plaintiff in civil suit No.114-1 of 2000 and 121-1 of 2003 and it can be safely inferred that the ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...25...
averments contained in both the plaints are verbatim same.
Though, in para-5 of the plaint of Civil Suit No.121-1 of .
2003, plaintiff has stated that he had no option but to construct breast wall on the spot about 50 feet long, 14 feet in height and 3 to 4 feet in width with stone and cement in the month of June 2000 after spending amount of Rs.
50,780/- but surprisingly, there are no details whatsoever, of with regard to other suit No.114-1 of 2000. In para-8 of the plaint, plaintiff simply stated that he has filed civil suit for rt recovery of Rs.2,00,000/- in respect of damages of fruit bearing trees and construction of retaining wall but there are no details with regard to the portion of land on which he was constrained to raise breast wall during the pendency of earlier civil Suit bearing No.114-1 of 2000.
25. Close scrutiny of the averments contained in both the plaints filed by the plaintiff against the same defendant in civil suit No.114-1 of 2000 as well as civil suit No. 121-I-2003 clearly suggest that plaintiff made an attempt to recover the amount of Rs. 2,00,000/- and 50,000/-
respectively for same cause of action on the basis of same set of the facts and circumstances by filing two separate civil suits, which is admittedly not permissible under law.
26. Hence, learned first appellate Court has rightly concluded that the second suit filed by the plaintiff is not ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...26...
maintainable under law. At this stage, it may be pointed out that defendant-State has also been quite negligent because at .
no point of time, it brought the aforesaid glaring aspect in the notice of the trial court as well as learned first appellate Court. There is no whisper, if any, with regard to filing of second civil suit on the same and similar grounds by the plaintiff in the plaint as well as in written statement filed on of behalf of the defendants. It appears that during arguments having been made by learned counsel representing the rt parties, learned District Judge noticed this glaring fact and came to the conclusion that the second civil suit on the same facts and circumstances is not maintainable and rightly held that same is hit by the provisions of section 11 of C.P.C.
27. It is apt to reproduce Section 11 of CPC herein:-
" Res judicata- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."::: Downloaded on - 15/04/2017 20:47:02 :::HCHP
...27...
28. In this regard reliance is placed on case titled as Dr. Subramanian Swamy Versus State of Tamil Nadu .
and others 2014 AIR SCW 6893. The relevant para No. 22 to 30 of the judgment is reproduced as under:-
22. It is not a case to examine whether in the facts and circumstances of the case, the judgments of this court in various cases are of required to be followed or the ratio thereof is binding in view of the provisions of Article 141 of the Constitution. Rather the sole rtquestion is whether an issue in a case between the same parties, which had been finally determined, could be negated relying upon interpretation of law given subsequently in some other cases, and the answer is in the negative. More so, nobody can claim that the fundamental rights can be waived by the person concerned or can be taken away by the State under the garb of regulating certain activities.
23. The scope of application of doctrine of resjudicata is in question. The literal meaning of "res" is "everything that may form an object of rights and includes an object, subject-matter or status" and "
resjudicata" literally means "a matter adjudged a thing judicially acted upon or decided; a thing or matter settled by judgments". "Resjudicata pro veritate accipitur " is the full maxim which has, over ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...28...
the years, shrunk to mere "resjudicata", which means that resjudicata is accepted for truth.
.
24. The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence "interest reipublicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the of maxim "nemo debet bisvexari pro uno et eadem causa" (no man should be vexed twice over for the same cause).
rt Even an erroneous decision on a question of law attracts the doctrine of resjudicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as resjudicata.(Vide: Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors. , AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65).
25. In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors.,AIR 1953 SC 33, this Court while dealing with the doctrine of Resjudicata referred to and relied upon the judgment in Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78 wherein it had been observed as under:::: Downloaded on - 15/04/2017 20:47:02 :::HCHP
...29...
"........ the rule of res judicata, while founded on ancient .
precedents, is dictated by a wisdom which is for all time..... Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as of expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a rt former judgment among allowed by law, each citing for those this purpose the text of Katyayana, who describes the plea thus: 'If a person though defeated at law, sue again, he should be answered, ''you were defeated formerly". This is called the plea of former judgment.'... And so the application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law''
26. This Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr. , AIR 1960 SC 941 explained the scope of principle of res- judicata observing as under:::: Downloaded on - 15/04/2017 20:47:02 :::HCHP
...30...
"7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is .
judicata, it shall not be adjudged again.
Primarily it applies as between past litigation and future litigation, When a matter- whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, of either party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of resjudicata is embodied in relation to suits rt in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of re judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct."
A similar view has been re-iterated by this court in Daryao & Ors. v. The State of U.P. & Ors., AIR 1961 SC 1457; Greater Cochin Development Authority v. Leelamma Valson & Ors., AIR 2002 SC 952; and Bhanu Kumar Jain v. Archana Kumar & Anr. AIR 2005 SC 626.
27. The Constitution Bench of this Court in Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors.
AIR 1964 SC 1013, considered the issue of res judicata applicable in writ jurisdiction and held as under:
::: Downloaded on - 15/04/2017 20:47:02 :::HCHP...31...
"...Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Article 32 or Article .
226. It is necessary to emphasise that the application of the doctrine of resjudicata to the petitions filed under Art. 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the of manner in which the said rights could be successfully asserted and vindicated in courts of law."
rt
28. In Hope Plantations Ltd. v. Taluk Land Board, Peermade & Anr.,(1999) 5 SCC 590, this Court has explained the scope of finality of the judgment of this Court observing as under:
"One important consideration of public policy is that the decision pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by the appellate authority and other principle that no one should be made to face the same kind of litigation twice ever because such a procedure should be contrary to consideration of fair play and justice. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it."
(See also: Burn & Co., Calcutta v. Their Employees , AIR 1957 SC 38; G.K. Dudani & ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...32...
Ors. v. S.D. Sharma & Ors., AIR 1986 SC1455; and Ashok Kumar Srivastav v.
National Insurance Co. Ltd.
& Ors., AIR 1998 SC 2046).
.
29. A three-Judge Bench of this court in The State of Punjab v. Bua Das Kaushal, AIR 1971 SC 1676 considered the issue and came to the conclusion that if necessary facts were present in the mind of of the parties and had gone into by the court, in such a fact-situation, absence of specific plea in written statement rt and framing of specific issue of resjudicata by the court is immaterial.
30. A similar view has been re-iterated by this court in Union of India v. Nanak Singh, AIR 1968 SC 1370 observing as under:
"This Court in Gulabchand Chhotalal v. State of Gujarat , AIR 1965 SC 1153 observed that the provisions of Section 11 of the Code of Civil Procedure are not exhaustive with respect to all earlier decision operating as resjudicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of resjudicata , any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as resjudicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. There is no good reason to preclude, such decisions on matters in ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...33...
controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as resjudicata in subsequent regular suits on the same matters in .
controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest."
29. Reliance is also placed in the judgment of Hon'ble Apex Court in Anil Jagannath Rana and others v. Rajendera Radhakishan Rana and others 2015 AIR of SCW 372. The relevant para- 14 and 15 of the judgment is reproduced as under:-
rt"14. In the suit instituted by the firm and some of the respondents, the order passed by the civil court that it was well within its jurisdiction to try the suit, despite the objection regarding the existence of a clause for arbitration, has become final. Thereafter, Section 11(6) jurisdiction of the Chief Justice cannot be invoked by either party. The principle of resjudicata will also be attracted in such a case.
"15. In Satyadhyan Ghosal and others Vs. Deorajin Debi(Smt.) and another,(AIR 1960 SC
941) this principle was discussed in detail and it has been settled as follows. To quote:-
"7. The principle of resjudicata is based on the need of giving finality to judicial decisions. What is says is that once a res is judicata, it shall not be adjudged again.::: Downloaded on - 15/04/2017 20:47:02 :::HCHP
...34...
Primarily it applies as between past litigation and future litigation. When a matter whether on a question of fact or a .
question of law has been decided between two parties in one suit or proceedings and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed , or no appeal lies, neither party will be allowed in a of future suit or proceedings between the same parties to canvass the matter again. This principle rt of resjudicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of resjudicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct"
30. Reliance is also placed in the judgment of Hon'ble Apex Court in Vaish Aggarwal Panchayat Vs. Inder Kumar and others AIR 2015 Supreme Court 3357.
The relevant para-11 of the judgment reproduced as under:-
11. In this context, we may profitably refer to the decision in V. Rajeshwari v. T.C. Saravanabava (2004) 1 S.C.C. 551)]. In the ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...35...
said case, a two-Judge Bench while dealing with the concept of resjudicata has held:-
"11. The rule of resjudicata does not .
strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.
12. The plea of resjudicata is founded of on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in rt the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour Hari Mahato(AIR 1936 PC
258), Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi( AIR 1948 PC 3) and Katragadda China Anjaneyulu v. Kattaragadda China Ramayya(AIR 1965 AP 177)." After so stating, the Court further observed that:- "Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. May be, in a given case only copy of judgment in previous suit is filed in proof of plea of resjudicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd.
Hanifa( AIR 1976 SC 1569) the basic method to decide the question of res-
judicata is first to determine the case of the parties as put forward in their ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...36...
respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as resjudicata."
.
31. Consequently, in view of the detailed discussion made hereinabove, as well as facts and circumstances available on record, this Court has no hesitation to conclude that the findings returned by learned of First appellate Court that second suit is not maintainable is based on correct appreciation of the evidence available on record as well as law. Since this Court while exploring the rt answer to the substantial question of law had an occasion to peruse the evidence be it ocular and documentary adduced on record by the respective parties, it can be safely concluded that the plaintiff filed two different civil suit on the similar facts and circumstances claiming the damage/compensation on account of damage caused to one and same land and expenditure incurred for construction of one and same retaining wall and as such, there is no illegality and infirmity in the findings returned by the learned first appellate court and accordingly, it is held that the second suit is/was not maintainable and is barred by principle of resjudicata as provided under Section 11 CPC.
In view of the aforesaid discussion, substantial question is answered accordingly and appeal is dismissed ::: Downloaded on - 15/04/2017 20:47:02 :::HCHP ...37...
being devoid of merit. Pending application(s), if any, also stand disposed of.
.
(Sandeep Sharma )
July 8th, 2016 Judge.
(shankar)
of
rt
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