Himachal Pradesh High Court
State Of Himachal Pradesh vs Smt Uma Devi Alias Umawatti on 23 September, 2021
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
Reportable
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA.
ON THE 23rd DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SURESHWAR THAKUR
REGULAR FIRST APPEAL No. 502 OF 2015.
Between:-
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY HPPWD,
H.P. SECRETARIAT, CHHOTA SHIMLA,
H.P.
2. EXECUTIVE ENGINEER, HPPWD,
THEOG DIVISION, THEOG, DISTRICT
SHIMLA, H.P.
....APPELLANTS
(BY MR. ASHWANI SHARMA AND
MR. HEMANT VAID, ADDL. AGs.)
AND
1. SMT UMA DEVI ALIAS UMAWATTI,
WIDOW OF LATE SH. DURGA SINGH,
RESIDENT OF VILLAGE BAGRI, P.O.
CHAILLA, TEHSIL THEOG, DISTRICT
SHIMLA, H.P.
2. SH. CHATTAR SINGH SON OF LATE
SHRI DUGRA SINGH, RESIDENT OF
VILLAGE BAGRI, P.O. CHAILLA, TEHSIL
THEOG, DISTRICT SHIMLA, H.P.
3. SH. HARINDER SINGH SON OF LATE
::: Downloaded on - 31/01/2022 23:06:46 :::CIS
...2...
SH. DUGRA SINGH, RESIDENT OF
.
VILLAGE BAGRI, P.O. CHAILLA, TEHSIL
THEOG, DISTRICT SHIMLA, H.P.
4. SH. RAJINDER SINGH, SON OF LATE
SH. DUGRA SINGH, RESIDENT OF
VILLAGE BAGRI, P.O. CHAILLA, TEHSIL
THEOG, DISTRICT SHIMLA, H.P.
5. SMT. GITA DEVI, DAUGHTER OF LATE
SH. DUGRA SINGH, RESIDENT OF
VILLAGE BAGRI, P.O. CHAILLA, TEHSIL
THEOG, DISTRICT SHIMLA, H.P.
....RESPONDENTS.
(BY MR. SUMEET RAJ SHARMA
AND MR. R.S. CHANDEL,
ADVOCATES)
RESERVED ON: 4th SEPTEMBER, 2021.
DELIVERED ON: 23rd SEPTEMBER, 2021.
This Regular First Appeal coming on for hearing this
day, the Court passed the following:-
::: Downloaded on - 31/01/2022 23:06:46 :::CIS
...3...
.
JUDGEMENT
A Civil Suit bearing No. 28 of 2009 became instituted by the plaintiffs before this Court. In the Civil Suit supra, the plaintiffs claimed the renditions of the hereinafter extracted relief(s), vis-a-vis, them, and, against the defendants:-
"i.
that the plaintiffs prays for a decree for Rs.27,00,000/- on account of damages suffered by the plaintiff with respect to their property alongwith interest @18% per annum from the date the amount fell due to the plaintiffs along with the costs of the suit against the defendants. ii a decree for permanent prohibitory injunction restraining the defendants from causing any damages to the property of the plaintiffs in Khewat No.4, min, Khataoni No.7 min, khasra Nos. 581, 582, 584 and 659 kita 4 in all measuring 0-81-96 hectares and kahsra No.583 situated at Village Bagri, Mauja Vasa Vagan Pargana Ghand, Tehsil Theog. Iii. A decree for mandatory injunction thereby directing the defendants to provide retaining wall in all length to the property of the plaintiff in Khewat No.4 min, Khatoni No.7 min, khasra Nos. 581, 582, 584 and 659 kita 4 in all meausring 0-81-96 hectares and kahsra No.583 situated at Village Bagri, ::: Downloaded on - 31/01/2022 23:06:46 :::CIS ...4...
Mauja Vasa Vagan Pargana Ghand, Tehsil Theog, District .
Shimla, H.P."
2. The afore espoused decrees were averred to be a sequel of the defendants, during the course of construction of link road, nomenclatured as Chaila-Huli-Jawal-Sawal-Devighat to Ulvi, hence in year 2007, taking to make excavations beyond permissible 12 feet, given the plaintiffs donating their land to the defendants, for the construction of the afore road, only if, the executing agency utilizes their land only to the extent of 12 feet width. Therefore, the plaintiffs aver that since beyond the afore permissible width of 12 feet, the executing agency, during the course of undertaking construction, of the road supra, making diggings, and, excavations of their land, thereupon, their being consequential damage to the plaintiffs' land, arising from heavy rains causing further slippages, and, land slides, especially vis-a-
vis, the land occurring above the road supra. Furthermore, it has also been averred in the plaint, that in sequel to the afore undertaking of construction activity, by the agency concerned, and, owing to continuous rains, the land, orchard, kitchen and ::: Downloaded on - 31/01/2022 23:06:46 :::CIS ...5...
.
temple of the plaintiffs, hence coming under imminent threat, and, also the afore premises developing cracks. Therefore, the plaintiffs, aver that there is a completest nexus inter se the afore forbidden constructing activity as undertaken by the executing agency concerned, and, the damage as caused to the land, and, premises of the plaintiffs.
3. to The defendants, through, theirs instituting written statement to the plaint, completely denied, that the afore mis-
feasance, and, non-feasance being attribuntable either to them or to the contractor concerned. Contrarily, they contended, that the plaintiffs had consented for the construction of the afore road through their land. Moreover, the defendants also contended in their written statement that the damage, if any, as has occurred to the plaintiffs' land, hence adjoining to the land over which road (supra) was constructed, rather being a sequel of heavy rain fall. Consequently, the defendants, in their written statements hence contended that the suit is barred, on the anvil of principle of remoteness of damages, inasmuch as the ::: Downloaded on - 31/01/2022 23:06:46 :::CIS ...6...
.
damages averred in the plaint, being not connected with the construction activity hence under taken by the executing agency concerned.
4. This Court, upon, the afore pleadings, had proceeded to, on 31.12.2009, strike the following issues:-
1.
2.
Whether the plaintiffs are entitled for permanent prohibitory injunction, as prayed for?OPP Whether the plaintiffs are entitled for the relief of mandatory injunction for being provided with the retaining wall for the portion of road passing from their properties as detailed in the plaint? OPP.
3. Whether the defendants have caused damage to the property of the plaintiffs during excavation and widening of the road, as alleged?OPP
4. If issue No.3 is proved, to what amount or to what extent or quantum of damages are the plaintiff entitled to. In the alternative whether the plaintiffs are entitled to a decree for Rs.27,00,000/- as prayed for?OPP
5. Whether the suit is not maintainable, as alleged and pleaded by the defendants? OPD.
::: Downloaded on - 31/01/2022 23:06:46 :::CIS...7...
6. Whether the plaintiffs are estopped from instituting .
the present suit by their acquiescence and conduct, as pleaded in preliminary objection No.2?OPD.
7. Whether there is no cause of action available to the plaintiffs to file the present suit?OPD.
8. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD
9. Whether the suit is barred by limitation?OPD.
10. Whether the defendant is entitled for compensatory cost under Section 35A of the Code of Civil Procedure, as prayed for?OPD.
11. Relief.
5. However, it appears that on account of enhancement of the pecuniary jurisdiction of the learned District Judge, the civil suit supra, became transferred by the Registry of this Court, to the learned District Judge, Shimla.
Thereafter, it was transferred for trial to the learned Additional District Judge, Shimla.
6. The learned trial Court, after analysing the evidence, as, became adduced by the contesting litigants upon issues (supra), whereons, the discharging onus became ::: Downloaded on - 31/01/2022 23:06:46 :::CIS ...8...
.
cast upon them, proceeded through its verdict drawn on 5.12.2014, upon the afore civil suit, hence decree the plaintiffs' suit only in a sum of Rs.5,69,500/- along with interest at the rate of 9% per annum, from, the date of filing of the suit till the realization of the afore amount. Moreover, the learned trial Court also made a decree for permanent prohibitory injunction, vis-a-vis, the plaintiff, wherethrough, he restrained the defendants from causing any kind of damage to the property, of the plaintiffs comprised in Khewat No.4 min, Khatauni No.7 min, Khasra No. 581, 582, 584 and 659 kita 4 in all measuring 0-81-96 hectares and kahsra No.583 situated at Village Bagri, Mauja Vasa Vagan Pargana Ghand, Tehsil Theog, District Shimla, H.P. Furthermore, a decree of mandatory injunction is also granted to the plaintiffs, wherethrough, the defendants were directed to provide retaining walls, on some places which are required, for the proper protection of the suit land.
::: Downloaded on - 31/01/2022 23:06:46 :::CIS...9...
.
7. The defendants become aggrieved from the afore made decrees, and, are hence, led to institute thereagainst the extant RFA before this Court.
8. For the reasons to be assigned hereinafter, the extant RFA merits dismissal.
9. PW-1 in his deposition, has clearly spoken, that they had agreed to part with their land, for enabling the defendants to construct the road supra, only upon its becoming utilized upto 12 feet. He has also in his examination-in-chief spoken, about the defendants rather proceeding to utilise 5-10 meters of their land. He voiced therein, that despite the afore excess user, by the defendants, of the plaintiffs' land, they have not been meted any damages by the defendants. Though, he became subjected to the ordeal of a rigorous cross-examination, by the learned defence counsel. However, a reading of his cross-
examination, discloses, that though in his cross-examination he has made an echoing that today the width of the road, is ::: Downloaded on - 31/01/2022 23:06:46 :::CIS ...10...
.
almost 12 feet. From the afore echoing, borne in the cross-
examination of PW-1, the learned Additional Advocate General, has made a vigorous contention before this Court, that the earlier echoing (supra) as existing in the examination-
in-chief of the plaintiff, and, appertaining to the plaintiffs' hence stands negated.
r to land becoming utilized by the defendants, in excess of 12 feet, However, the afore stray admission, as carried in the cross-examination of PW-1, does not support, the afore submission, as, an incisive reading of the admission supra, appertains to the entire width of the road, and, does not appertain, to the relevant site hence occurring in the vicinity of the premises of the plaintiffs, especially when in respect thereto, he, has in his examination-in-chief, rather made a candid echoing, that at the afore site rather the defendants, than utilizing the permissible 12 feet of the plaintiffs' land, theirs utilizing 5 to 10 meters, of, the plaintiffs' land. More so, when in support of the afore pointed and stark factum, and, appertaining to the precise portion supra ::: Downloaded on - 31/01/2022 23:06:46 :::CIS ...11...
.
of the suit land, no cross-examination hence became conducted by the defendants' learned defence counsel, upon, PW-1. The effect of the afore omission, and, appertaining to, no precise cross-examination becoming conducted upon PW-
1, qua pointed, and, candid echoings rather being made by PW-1, in his examination-in-chief, qua the defendants beyond 12 feet rather upto 5 to 10 meters hence utilizing the plaintiffs' property, does obviously clinch, a conclusion that the defendants, had beyond the permissible width of 12 feet, rather proceeded to excavate the plaintiffs' land hence upto 5 to10 meters.
10. PW-2 in his examination-in-chief, has proven PW2/A, detailing therein the damages assessed, and, caused to the plaintiffs land, adjoining to the road supra, and, also to his premises. Even though, he, as, evident on a reading of his cross-examination, did not consult the revenue papers.
However, the afore infirmity, if any, hence in meteing credence to Ex.PW2/A, becomes mitigated from PW-5, the ::: Downloaded on - 31/01/2022 23:06:46 :::CIS ...12...
.
Halqua Patwari concerned, rather proving, during his examination-in-chief, Ex.PW1/A, as well as Ex.PW1/B, detailing thereins, the apposite damages caused to the plaintiffs' land, and, to their property. Though, in his cross-examination, he has mentioned, that the preparation of afore exhibits, by him, was in consonance with the manual prepared by the department concerned, for rendering financial help to them, as, arose from the land, and, properties of the plaintiffs, being damaged owing to heavy rain fall, as occurred in the year 2008. Even if assumingly, Ex.PW1/A and Ex.PW1/B were prepared by PW-5, only for disbursing to the plaintiffs hence monetary reliefs, as became announced by the Government, for mitigating the damages caused to their lands, and, to their properties, as arose from heavy down pours which occurred in the year 2008. Moreover, though, the defendants contend, that there is no causal connectivity inter se the averred damage, vis-a-vis, road construction activity, rather there is the completest remoteness inter se the damages caused to ::: Downloaded on - 31/01/2022 23:06:46 :::CIS ...13...
.
the house, and, to the property of the plaintiffs, and, vis-a-vis, the construction activities (supra), as undertaken by the executiing agency. Therefore, though it is contended by the learned Additional Advocate General, that the suit for damages is completely hit by the doctrine of remoteness, of
11. to damages, and, hence, the plaintiffs' suit deserves dismissal.
However, the afore made argument, is completely falsified, by the reason supra, as, became assigned, by this Court in accepting the version echoed by PW-1, in his examination-in-chief, that beyond the permissible area of 12 feet, the executiing agency, at the relevant site, carrying excavation activities rather upto 5 to 10 meters. Since, the road construction activity ended in the year 2008, and, even if heavy rain falls occurred in the years concerned, and, hence, sequelled damage to the house, and, property of the plaintiffs, thereupon, too the impermissible excavation (supra), as made by the executing agency, over the plaintiffs' land, at the relevant site, becomes obviously the preeminent ::: Downloaded on - 31/01/2022 23:06:46 :::CIS ...14...
.
reason for the causings of further damages, through landslides during rains, rather to both the properties, and, to the land(s) of the plaintiffs.
12. The above discussion, unfolds, that the conclusions as arrived by the learned trial Court, are based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned trial Court, has not excluded germane, and, apposite material from consideration.
13. In view of the above discussion, there is no merit in the extant appeal, and, it is dismissed. In sequel, the judgment and decree, rendered by the learned trail Court affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of.
No order as to costs.
(Sureshwar Thakur) Judge 23rd September, 2021.
(jai) ::: Downloaded on - 31/01/2022 23:06:46 :::CIS