Himachal Pradesh High Court
Sukh Ram vs State Of H.P. & Others on 31 December, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
.
RFA No. 128 of 2016 a/w
RFA No. 381 of 2016
Reserved on: 11.12.2019
Date of Decision: 31.12.2019
1. RFA No. 128 of 2016
Sukh Ram. .....Appellant
versus
State of H.P. & others ....Respondents.
2. RFA No. 381 of 2016
State of H.P. & another ...Appellants
versus
Sukh Ram & another. ...Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the appellants: Mr. B. M. Chauhan, Sr.
Advocate with Mr. Amit
Himalvi, Advocate, for the
appellant in RFA No. 128 of
2016 and for respondent No.1
in RFA No. 381 of 2016.
1
Whether reporters of the local papers may be allowed to see the judgment?
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-2-
For the respondents: Mr. Hemant Vaid Addl. A.G.
with Mr. Vikrant Chandel &
.
Mr. Gaurav Sharma Dy. A.Gs.
for respondents No. 1 &2 in
RFA No. 128 of 2016 and for
the appellants in RFA No. 381
of 2016.
Mr. Y.P.S. Dhaulta, Advocate,
for respondent No.3 in RFA
No. 128 of 2016 and for
respondent No.2 in RFA No.
r 381 of 2016
Sureshwar Thakur, Judge:
The plaintiff instituted a suit, claiming therethrough, rendition, of, a decree, of, Rs.
21,00,000/, against, the defendants, and, the afore suit claim became rested, upon, (a) inasmuch, as, during the course, of, construction of SarainJhokar Road, in, Tehsil Chopal District Shimla, H.P., hence, in December, 2008, rather, codefendant No.3, who became awarded the work, of, execution, of, the afore road, throwing debris, upon, the plaintiff's land, hence, damaging 80 ::: Downloaded on - 04/01/2020 20:25:51 :::HCHP -3- fruit bearing trees,growing thereon (b) and, also hence towards the expenditure, incurred or incurable by the .
plaintiff, for, removal of debris, as became thrown, upon, his land, (c) besides toward costs of erecting retaining wall(s), for, protecting his land, from, landslides.
2. Through the impugned verdict, recorded, upon Civil Suit No. 3S/1 of 2015/11, by, the learned District Judge (Forest), Shimla, the latter partly decreed the plaintiff's suit, for, a sum of Rs. 13,73,179/, along with costs, (a) and, the afore part decreeing, of, the plaintiff's suit, was, made dependent, upon, Ext. PW 1/A, and, exhibit whereof, is, reflective, visavis damage, to, 80 fruit bearing trees, hence occurring, on the plaintiffs land, rather becoming encumbered.
However, the learned trial Judge, declined, to decree, the, further suit claim, towards monetary damage(s), vis avis, expenditure(s) to be incurred, by the plaintiff, for, removal of debris, as, became purportedly thrown onto ::: Downloaded on - 04/01/2020 20:25:51 :::HCHP -4- his land, by defendant No.3, (b) besides also declined, to, decree qua him, the further suit claim, hence .
appertaining, to, defendant No.3, becoming directed, to, erect retaining wall(s), for, protecting his land, from, landslides. The plaintiff becoming aggrieved, from, the nondecreeing, visavis, him, the, afore alluded suit claim(s), and, also the defendants, becoming aggrieved, from, the afore part decreeing, of, the plaintiff's suit claim, hence, by the learned trial Court, rather both thereagainst(s) rear RFA No. 128 of 2016, and, RFA No. 381 of 2016, before this Court, whereupon, they, strive to beget reversal, of, the afore made verdict, by, the learned trial Judge.
3. Since both the afore RFAs, arise, from a common verdict, hence, both are amenable, for, a common verdict, becoming made thereon.
4. A perusal of Ext. PW1/A, proven, by PW1 does with explicit candor, unveil, visavis, damage ::: Downloaded on - 04/01/2020 20:25:51 :::HCHP -5- becoming caused, to, 80 apple bearing trees, as, existed on the suit land, and, there is also an enunciation .
therein, hence, with specificity, visavis, the apt parameters, as, became borne, in, mind, made, by, the author, of, Ext. PW1/A, in, his assessing damages, vis avis, the afore apple bearing trees, existing, on, the plaintiff's land. A reading of the crossexamination of PW1, as, conducted, upon, him, by the learned defence counsel, does not disclose, visavis, Ext. PW1/A, becoming falsely prepared, in as much as, the depiction therein, qua 80 fruit bearing trees existing, upon, the suit land being false, or, unauthentic, (a) nor any suggestion became put, to, PW1, by the learned defendants' counsel(s), upon, theirs holding, him, cross examination, hence suggestive, visavis, the apposite parameters, remaining irrevered, by PW1, in, his preparing, PW1/A. The sequel thereof, is, qua reliance, made, upon PW1/A, by, the learned trial Judge, for, ::: Downloaded on - 04/01/2020 20:25:51 :::HCHP -6- therethrough his decreeing partly the plaintiffs suit, and, hence in consonance therewith, in, a sum(s) of Rs.
.
13,73,179/, along with costs, rather not suffering from any infirmity. Furthermore, conspicuously, when the demarcation report, as, borne in Ext. PW5/B, does succor, the, afore enunciation(s) made, in, Ext. PW1/A, thereupon, the, defendants' challenge, through, RFA No. 381, of, 2016, visavis, the afore part decreeing of the suit claim, does not, warrant interference, from, this Court.
5. Be that as it may, the, learned counsel, for, the plaintiff, has, contended with much vigor, before this Court, qua, hence the non decreeing(s), visavis, plaintiff's, further suit claim, and, appertaining, to, (a) the cost(s) or expenditure(s), as, incurrable, for, removal of debris, as, became thrown, onto the suit land, by, co defendant No.3, during, his executing the afore public work, (b) and, also qua the declining, visavis, plaintiff, ::: Downloaded on - 04/01/2020 20:25:51 :::HCHP -7- the further suit claim, and, appertaining to defendants, becoming injuncted, to, erect a retaining wall, for, .
protecting the suit land, from landslides, rather both becoming infirm, or, fallible, as, the learned trial Judge, has, omitted to mete deference, to, PW2/A. However, for the reasons to be assigned hereinafter, the non meteing of credence, visavis, Ext. PW2/A, hence, by the learned trial Judge, is, neither unmeritworthy, nor suffers, from, any illegality, as, (a) during the course of preparation of Ext. PW2/A, the author thereof, not, ensuring, the apt joining(s), of, all the defendants, (b) his omitting to join, the, revenue officer concerned, for, hence ensuring eruption, of, credible evidence, visavis, the echoings, made in Ext. PW2/A, visavis, from any purported dereliction(s), on, the part, of, codefendant No.3, in his executing, the, afore public work, his throwing debris, onto the suit land, (c) with further disclosure(s) therein, for, hence therethrough(s), it ::: Downloaded on - 04/01/2020 20:25:51 :::HCHP -8- becoming completely established, qua, the afore echoings, made therein, becoming related, to, the suit .
land. Consequences, of, non joining(s), of, revenue officer(s) concerned, by the author, of, Ext. PW2/A hence constrain, an inference from this Court, visavis, the detailings therein, visavis, throwings, of, debris, on to the suit land, by codefendant No.3, and, also, visa vis, the necessity, of, erection, of, retaining wall(s), for, protecting, the, suit land, from, landslides, rather become unamenable, for, acceptance, (a) as, the afore detailings therein, do, want of association, of, the revenue officer concerned, by, the author of, Ext. PW 2/A, rather capitalize, an, inference, visavis, Ext. PW 2/A, become not proven to stand related, to, the suit land. Moreover, since the construction of the afore road, occurred in the year 2008, and, the extant suit hence became instituted, in the year 2011, (b) thereupon the effect, of, the extant suit, becoming instituted, hence ::: Downloaded on - 04/01/2020 20:25:51 :::HCHP -9- three years, since, the, eruption, of, the apt cause of action, rather in the year 2008, is, qua the apt civil .
wrong or tort, as, attributed to codefendant No.3, rather, becoming ascribable to acts other, than, any purported dereliction(s) becoming committed, by, co defendant No.3.
6. The above discussion, unfolds, qua the conclusion(s), as arrived by the learned Court below, being based, upon a proper and mature appreciation, of, evidence on record.
7. In view of the above discussion, both the appeals, are, dismissed, and, the judgment, and, decree impugned, before this Court, is, affirmed, and, maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.
(Sureshwar Thakur) 31.12.2019 Judge (kck) ::: Downloaded on - 04/01/2020 20:25:51 :::HCHP -10- (kck) .
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