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.576 of 2007 a/w
RSA No.146 of 2008
Date of Decision: 8th July, 2016.
.
1. RSA No.576 of 2007
Abhishek & others ....Appellants.
Versus
State of Himachal Pradesh ...Respondent.
of
2. RSA No.146 of 2008
State of Himachal Pradesh .......Appellant.
Versus
Coram:
rt
Abhishek & others ....Respondents.
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Appellants : Mr. B.N.Mehta, Advocate in RSA
No.576 of 2007 and for
respondents in RSA No.146 of
2008.
For the Respondent: Mr. Rupinder Singh Thakur,
Additional Advocate General
with Mr. Rajat Chauhan, Law
Officer for the respondent in
RSA No.576 of 2007 and for
appellant in RSA No.146 of
2008.
Sandeep Sharma, Judge (Oral)
Aforesaid appeals are being taken up together for final disposal as the same have arisen out of common judgment dated 23.8.2006, passed by learned District Judge (Forest) Shimla in Civil Appeal No.110-S/13 of 05/04.
Whether reporters of the local papers may be allowed to see the judgment?
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2. Briefly stated facts as emerge from the record are that present appellant (hereinafter referred to as "Plaintiff") .
filed a suit for decree of recovery of Rs.2,00,000/- along with cost and interest at the rate of 15% against the respondent(hereinafter referred to as "Defendant") averring therein that the plaintiff is exclusive owner in possession of the land denoted by khasra No. 338, measuring 0-04-04 of hectares (11 biswas), situated in Chak Guthan Khas, Tehsil Theog, District Shimla, H.P. He also claimed to be exclusive rt owner of khasra No. 335, measuring 0-02-84 hectares (9 biswas) situated in same chak. The plaintiff being exclusive owner of the aforesaid khasra numbers alleged that about 4- 5 years back, 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 owned by 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 ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...3...
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 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 of construct support/breast wall on the spot. In October/ November, 1997-98, eight fruit bearing apple trees having rt age of 20 years got damaged due to widening process and landslides occurred at the spot, which is below khasra No.338,causing huge financial loss to the tune of Rs.20,000/-to the plaintiff. 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 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 under Section 80 C.P.C to the defendant advising them to construct breast wall but defendant paid no heed to the advise/request of plaintiff.
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Hence, plaintiff left with no other option but to construct breast wall on his own expenditure.
.
3. The plaintiff constructed breast wall on the spot which is 70 feet long, 10 feet in height and 3 to 4 feet in width with stone and cement in the month of October, 1999.
The plaintiff also got the value assessed of breast wall constructed by him from J.E, H.P.PWD Mahori, Tehsil of Theog, which was assessed as Rs. 1,82,933/-. Thereafter, the plaintiff requested the officers of the defendant to make rt the payment qua the amount spent by him for the construction of breast wall, but no response whatsoever, was 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 suggests that the defendant filed written statement and raised various preliminary objections qua maintainability, locus-standi, and 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 ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...5...
area and while carrying out the cutting work, all precautionary measures were taken into consideration to .
ensure that no damage is 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 of providing any breast/ support wall as the strata of the land was very stable, no retaining wall was constructed by the rt Department at that time. The defendant also averred that no damage, whatsoever, was ever assessed by any authority.
Neither damage was assessed nor did petitioner himself submit 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.
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5. The learned Trial Court below on the basis of the pleadings available on record, framed the following issues on .
1.3.2002:-
1. Whether the plaintiff is entitled to recover Rs.2,00,000/- as damages from the defendant, as alleged? OPP.
2. Whether the plaintiff is estopped by his act or conduct from filing the instant suit? OPD of
3. Whether the suit is not within time? OPD.
4. Whether the suit in the present form is not rt maintainable? OPD.
5. Relief:-
6. Subsequently, learned trial Court below on the basis of the evidence available on record, decreed the suit of the plaintiff for the recovery of Rs. 2,00,000/- along with costs.
7. Feeling aggrieved and dissatisfied with the judgment and decree dated 27.4.2004, passed by learned trial Court in Civil Suit No.114-1 of 2000 defendant-State filed an appeal in the Court of learned District Judge, Shimla under Section 96 of the Code of Civil Procedure, which was partly allowed and learned first appellate court was pleased to modify the judgment and decree passed by learned trial Court by decreeing the suit of the plaintiff for Rs. 1,15,445/- with cost and interest at the rate of 6% per ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...7...
annum instead of Rs. 2,00,000/- as was decreed by learned trial Court below.
.
8. Both the appellants as mentioned in the memo of parties above, filed two separate appeals bearing RSA No.576 of 2007 titled as Abhishek and others Vs. State of H.P. and RSA No.146 of 2008 titled as State of H.P versus Abhishek and others before this Court. Appellant-State in of RSA No.146 of 2008, assailed the judgment and decree dated 23.8.206, passed by learned District Judge(Forest) rt civil Appeal No.110-S/13 of 05/04 on the ground that both courts below have not rightly appreciated the pleadings as well as evidence adduced by the parties and as such, judgment and decree dated 27.4.2004, passed by learned trial Court holding plaintiff namely Deep Ram entitled to Rs.
2,00,000/- is not based on correct appreciation of the evidence on record and as such, same deserves to be quashed and set-aside. Appellant-State further stated that all the material issues arising out of the pleadings of the parties have not been framed properly by the courts below and the judgment and decree passed by both the courts below are based upon surmises, conjectures and hypothesis and are wholly against law and principle of natural justice and as such, same deserve to be quashed and set-aside. It is also alleged by the appellant-State that the inferences and ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...8...
conclusions drawn by the courts below are neither supported by the pleadings of the plaintiff nor by the .
provisions of law and as such, judgments passed by the both the courts below are deserve to be quashed and set-aside. It has been specifically contended by the appellant-
State that both the courts have fallen in grave error by wrongly concluding that the damage was caused to the land of as well as fruit bearing trees of the plaintiff on account of widening and construction of the road. Appellant-State also rt contended that no decree could be passed merely on the statement of PW-2, Sh.Mohan Lal, Junior Engineer (retired),who allegedly prepared the estimate for construction of breast wall and sent the same to Deputy Commissioner, Shimla for grant of funds. Appellant-State has further contended that estimate was prepared and sent to Deputy Commissioner Shimla but same was prepared to protect the road from sliding from various points due to rain damages not for construction of retaining wall as has been claimed by the plaintiff. The appellant-State specifically stated that in the instant case, plaintiff himself disturbed the natural support of land by excavating foundation for construction of his house, which lateron resulted into landslide on that portion. The appellant-State has also stated that road was constructed 2-3 years before the plaintiff started ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...9...
construction of house on the land adjoining to the road and till then no damage whatsoever, was caused to the land of .
the plaintiff and as such, no compensation could be awarded to the plaintiff.
9. On the other hand, plaintiff namely Deep Ram aggrieved with the judgment and decree dated 23.8.2006, passed by learned District Judge(Forest) Shimla, modifying of the judgment and decree dated 27.4.2004, passed by learned trial Court, whereby amount was reduced from rt Rs.2,00,000/- to Rs. 1,15,445/- also filed RSA No.576 of 2007 before this Court.
10. This Court vide order(s) dated 2.5.2008, was pleased to admit RSA No.576 of 2007 & RSA No.146 of 2008 on the following substantial question of law:-
1. Whether there has been misreading of oral as well as documentary evidence by the court below?
11. Mr. Rupinder Singh Thakur, Additional Advocate General, appearing on behalf of appellant-State in RSA No.146 of 2008 vehemently argued that the impugned judgment passed by both the Courts below are not based upon the correct appreciation of evidence available on record.
He forcibly contended that both the Courts have fallen in grave error while holding the plaintiff entitled for ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...10...
compensation/damages on account of loss, if any, to the land as well as apple bearing trees of the plaintiff and as such, .
impugned judgment passed by both the courts below are deserve to be quashed and set-aside. Mr. Thakur, forcibly contended that there is no evidence, worth the name, available on record to demonstrate that damage, if any, was actually caused to the land of the plaintiff on account of of widening of the road, rather facts available on record clearly suggest that the land comprised in khasra No.338 slided due rt to excavation of same by the plaintiff himself for construction of his house and as such, no compensation, if any, could be awarded in favour of the plaintiff. He forcibly contended that it duly stands proved on record that 2-3 years prior to filing of the suit, road was constructed and during this period no portion of land got slided and it is only after construction of house of the plaintiff, some part of land slided and as such, appellant-State could not be held liable for damages, if any, to the land of the plaintiff. During arguments having been made by him, he also invited the attention of the Court to the evidence adduced on record by the plaintiff to demonstrate that no damage, if any, was caused to the land of the plaintiff by the action of the appellant-State and as such, prayed for quashing of the judgments and decree passed by both the Courts below.
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12. Mr. B.N. Mehta, learned counsel representing the respondent in RSA No. 146 of 2008 and for appellant in RSA .
No. 576 of 2007 stated that the judgment dated 23.8.2006, passed by learned District Judge(Forest) Shimla in Civil Suit No. 114-1 of 2000 deserve to be quashed and set-aside and judgment dated 27.4.2004 passed by learned trial Court dated 27.4.2004 in Civil Suit No.114-1 of 2000 needs to be of upheld. As per Mr. Mehta, learned first appellate court while modifying the judgment passed by learned trial court has rt miserably failed to appreciate that due to in-action on the part of the State, great financial loss had occurred to the plaintiff who was compelled to construct the restraining wall on the spot to protect his land from further damage after spending huge amount. To substantiate his aforesaid pleas, he made this Court to travel through the depositions/ statements made by PW1, Deep Ram, PW-2, Mohan Lal, PW-
5, Madan Singh and PW-6, Madan Lal to demonstrate that in the year,1993 respondent had under taken the work of construction of the road and in that process damage was caused to the land of the plaintiff comprising in khasra No.338 as well as 335. He also invited the attention of the Court to the estimate of the construction of breast wall i.e. Ex.PW2/B and Ex.PW2/C to suggest that the estimate for construction of retaining wall was forwarded to Deputy ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...12...
Commissioner, Shimla for sanction but since no steps, whatsoever, were taken to construct the wall, plaintiff was .
compelled to construct the wall after spending approximate two lacs rupees.
13. Mr. Mehta, vehemently argued that it stands duly proved on record that the plaintiff after spending his own money constructed the breast wall, which was to be of constructed by the respondents-State since damage to the land was caused by their in-action. Mr. Mehta, also rt contended that it also stands proved on record that 8 fruit bearing apple trees aged about 20 years also got damaged in the process and as such, learned trial Court had rightly awarded the compensation qua the same. Lastly, he prayed that the judgment and decree dated 23.8.2006, passed by learned District Judge(Forest), Shimla deserve to be quashed and set-aside and the judgment and decree passed by learned trial court be up held.
14. Since both the appeals have been admitted on the same 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 both the Courts below, whereby learned appellate Court while accepting the appeal preferred on behalf of the respondent has modified the judgment and ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...13...
decree passed by learned trial Court and reduced the amount of decree to Rs. 1,15,445/-from Rs. 200,000/-
.
originally granted by learned trial Court in the suit filed by plaintiff/appellant namely Sh. Deep Ram for the loss caused to the land and apple bearing trees as well as expenditure incurred by him for construction of retaining wall.
15. From the careful perusal of the pleadings of available on record, it is ample clear that "Mahori-Guthan-
Sharmala Road" was constructed by the defendant in the rt year 1997 to 99 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 exists on the upper side of 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 they have only disputed the claim of the plaintiff with regard to construction of retaining wall, which he constructed on his own expenditure.
16. Now with a view to answer the substantial questions of law as referred hereinabove framed at the time of admission, this Court critically examined the evidence ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...14...
available on record to ascertain the genuineness and correctness of the judgments passed by both the Courts .
below.
17. Plaintiff Deep Ram(PW-1) with a view to prove its case stated that defendant constructed "Mohori-Ghutan Road" on the part of khasra No.335 which is below khasra No.338 i.e. suit land. He also stated that due to deep digging of and removal of natural support to the suit land, it started sliding down on the boundary of khasra Nos.338 and 335. In rt November, 1997 his 8 apple plants having age of 20 years were damaged causing him loss to the tune of Rs.20,000/-.
He also stated that since there was imminent danger to his remaining land and the defendants despite repeated requests failed to construct the beast wall on the spot, he was compelled to construct retaining wall on his own expenditure.
It has also come in his statement that he requested PWD for construction of breast wall but no heed was paid to his request. He also stated that defendant kept on assuring him that breast wall would be constructed as soon as the funds are sanctioned by the department. As per PW-1, estimate was prepared by HP,PWD for the construction of breast wall on the part of the suit land in the year, 1999 and a request for funds to D.C. Shimla in this behalf was also made. He also stated that after construction of road, widening process was ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...15...
started in the year, 1997 to 1999 and damage was caused to the land as well as apple bearing trees existing thereon. He .
stated that since the sliding down of the suit land was a continuous process and defendant had failed to construct the breast wall beside land of the plaintiff, he was constrained to construct breast wall on the spot. As per PW-1, defendant in the year, 1999 also prepared estimate for the construction of of the wall on the part of the suit land but no fund was provided by the Deputy Commissioner, Shimla. He also issued notice rt under Section 80 CPC to the defendant , which was duly served upon the defendant but the defendant failed to construct breast wall and ultimately he constructed the wall on the spot, which is 70 feet in length and 10 feet in height and 3-4 feet in width. He also stated that he got prepared estimate from J.E,PWD, who assessed the cost as Rs. 1,82,933/-. He made request to the official of the defendant to pay this amount but nothing was paid, hence, he was compelled to file suit claiming therein cost of retaining wall to the tune of Rs. 1,82,933/- and Rs. 17,000/-
as cost of apple plants.
18. PW-2, Mohan Lal stated that he remained posted as Junior Engineer at Mohari from 1994-2000 in the defendant's department. He also stated that "Mohar Ghutan Road" was under his supervision and he constructed the ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...16...
same. He also stated that during 1997-98 and 1999 the widening process of the said road was under taken on the .
part of the land of defendant. He also stated that there was deep digging for the construction and widening which resulted into sliding down of the land of the plaintiff. He also stated that the plaintiff made requests for the construction of breast wall on the spot. He also stated that to this effect of department prepared estimate etc. for the construction of the breast wall to prevent further damage to his land as well as rt to the his apple orchard in the year, 1999. He also stated that he prepared the estimate for the construction of breast wall and sent the same to D.C, Shimla for grant of funds. He also admitted that during widening work of the road, landslides on the land of the plaintiff took place, which caused damage to his apple orchard.
19. PW-3, M.L.Sharma, J.E.,HP, PWD at Matiana also stated that steps were taken for preparing estimate to construct a breast wall on the spot. He also produced the record as summoned by the plaintiff. During his examination, he exhibited documents Ex.PW3/A to Ex.PW3/F. Ex.PW3/A suggest that letter was sent to the Deputy Commissioner, Shimla by Executive Engineer, Theog Division, wherein defendant department raised a demand of funds to D.C, Shimla on the ground that the rain has ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...17...
damaged Kayara-Kutha road and a beast wall has been proposed to restore the damaged road. Ex.PW3/B is the .
report of the spot to this effect, whereas Ex.PW3/C is the assessment, which has been assessed at Rs. 1,02,643/-.
Ex.PW3/D is detail of quantity. Ex.PW3/E and Ex.PW3/F are the concerned documents with regard to the estimate.
20. PW-4, Beli Ram also stated that due to of construction and widening of road done by the defendant on the spot, there was imminent danger to the land of the rt plaintiff and a breast wall was very much required to protect the same. He also stated that retaining wall was constructed by the plaintiff himself in the end of 1999, which fact was duly supported by PW-6, Madan Lal, who also remained President of Gram Panchayat, Klind during the said period.
21. DW-1, Sh. M.L.Sharma, remained as J.E. Sub Division, Matiana during the year, 1998 to December 2002.
DW-2, Padam Singh remained as Road Inspector, Sub-
Division, Matiana. DW-3, Ram Kumar was Assistant Engineer during the year September 1998 to December, 2002 in Sub Division Matiana, admitted in their cross-examination cutting of the road near to the land of the plaintiff. They also admitted that there was no supporting wall constructed by the defendant. They also admitted that estimate was prepared by the defendant, which was sent to D.C, Shimla for ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...18...
approval of funds. They further stated that the estimate was for Rs.102645/-.
.
22. Conjoint reading of the aforesaid plaintiff witnesses clearly suggest that the defendant constructed Mohori-Guthan-Sharmala road, which passes through khasra No.335 i.e suit land and due to deep digging natural support to the suit land of the plaintiff on the boundary of of khasra No.338 and 335 started sliding down and damage was caused to the suit land as well as apple orchard existing rt on the same between year 1997 to 1999. Close reading of the aforesaid statements of the witnesses suggest that despite several requests, defendant failed to take preventive steps, as a result whereof, further damage was caused to the land as well as apple orchard of the plaintiff. It also emerge from record that taking note of the imminent danger, Executive Engineer, Theog had sent some proposals to the Deputy Commissioner for providing funds for restoring the damage .
Ex.PW3/B and EX.PW3/C clearly suggest that as per assessment damage was assessed at Rs. 102645/- and fund was asked from the Deputy Commissioner. Since, no fund was made available, plaintiff namely Deep Ram was compelled to raise retaining wall on the spot after spending his own money i.e. Rs. 1,82,933/- .
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23. Learned trial Court on the basis of evidence adduced on record came to the conclusion that since danger .
was caused to the plaintiff by the act and conduct of the defendant by construction and widening of the road, plaintiff was compelled to construct retaining wall on the spot by incurring expenditure from his pocket. Learned trial court below taking into note the statement of PW-5, Madan Singh, of Horticulture Development Inspector also concluded that cost of one apple trees of the age of 20 years was about rt Rs.1600/- and accordingly granted the compensation.
24. Even learned first appellate court has concluded that the plaintiff has proved sufficient evidence on record that due to the construction of the road, damage was caused to the suit land and landslides took place on the suit land.
Learned first appellate Court has also placed reliance upon the deposition made by PW-1,Deep Ram PW-2, Mohan Lal, PW-3, M.L.Sharma, PW-4 Beli Ram and PW-5, Madan Singh, who have categorically stated that the road in question was constructed during the years, 1997-98 and 1999 and in that process damage was caused to the land and apple orchard of the plaintiff. Learned first appellate Court also took note of the cross-examination of DW-1, M.L.Sharma and DW-2, Padam Singh, wherein they admitted that the ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...20...
damage was caused to the suit land, when this road was constructed.
.
25. However, learned first appellate Court while accepting the appeal preferred on behalf of the appellant-
State, agreed with the contention raised by the learned counsel for the appellant- State, wherein he stated that only evidence regarding the loss suffered by the plaintiff is of statement of PW-2, who have categorically stated that he had prepared estimate for the construction of the breast wall on rt the spot and also its map i.e.Ex.PW2/B and Ex.PW2/C. PW 2 stated that he had sent estimate to Deputy Commissioner, Shimla for grant of funds amounting to Rs.1,026451/-.
Careful perusal of statement of PW-2, no doubt suggest that he prepared the estimate of breast wall and he had sent the estimate to the Deputy Commissioner claiming therein that an amount of Rs. 1026451/- as required for the construction of the support/breast wall.
26. During proceedings of the case, this Court had an occasion to travel through statements given by plaintiff witnesses as well as defence witnesses and while perusing entire evidence available on record, this Court was unable to lay its hand to any documentary evidence led on record by plaintiff suggestive of the fact that actually he incurred Rs.
1,82,933/-on the construction of the breast wall. PW-1, ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...21...
plaintiff while examining himself stated that he spent Rs.1,82,933/- on the construction of retaining wall and he .
suffered loss to the tune of Rs. 1,82,933/- on account of damage to apple tress. Apart from aforesaid statement of PW-
1, no plaintiff witness stated something with regard to actual expenditure incurred on the construction of the retaining wall. It is only PW-2, Mohan Lal, who was J.E.at the relevant of time who had prepared the estimate of the breast wall on the spot and in this regard he had sent Ex.PW2/B and rt Ex.PW2/C, which was further forwarded by Executive Engineer to Deputy Commissioner, Shimla for grant of fund of Rs.102645/-. Since PW-1 heavily relied upon the statement of PW-2 who admittedly being technical person prepared the estimate and demanded Rs.102645/-, his version could not be brushed aside solely by the learned trial court relying upon the statement of plaintiff PW-1.
27. Perusal of Ex.PW2/A suggest that estimate sent by PW-2 was further forwarded by Executive Engineer to Deputy Commissioner Shimla and the same was qua the Kiaroo Kuthan road. Hence, it cannot be said that this amount as pointed out in Ex.PW2/B and Ex.PW2/C was only for the construction of support/breast wall below the land of the plaintiff comprising of khasra No.338. Careful perusal of Ex.PW2/B and Ex.PW2/C suggest that there is ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...22...
some force in the contention put forth on behalf of the defendants, which was corroborated by statement of DW-1 .
and DW-2, who have categorically stated that the estimate being relied upon by the plaintiff was actually prepared for the whole road not for the construction of the retaining wall.
Rather perusal of Ex.PW3/A clearly suggest that Executive Engineer, Theog Division(B&R) vide communication dated 4th of February, 1999 had sent estimate to Deputy Commissioner, Shimla for restoration of rain damages on Kiaroo Kuthan rt road. The estimate forwarded by the Executive Engineer, Theog Division (B&R) clearly suggest that this estimate amounting to Rs. 102645/- was towards the cost of work of R/R Kiaroo Kuthan Road and as such, it can be safely concluded that in total an amount of Rs. 1,02,645/- was claimed by the Executive Engineer for the repair of the road as well as construction of retaining wall to protect the land of the plaintiff. It seems that after submitting of the aforesaid estimate, plaintiff without taking any approval from the respondents increased the length of breast wall to 70'' and increased the cost of construction to Rs. 1,82,933/- as claimed by the plaintiff. But as has been discussed above, plaintiff has not led on record any evidence save and except EX.PW2/B and Ex.PW2/C to demonstrate that he actually incurred an amount of Rs. 1,82,933/- on the construction of ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...23...
retaining wall to protect his land from further slides. Hence, this Court sees no illegality and infirmity in the judgment .
and decree passed by learned first appellate Court, wherein it has been concluded that the plaintiff is entitled to the amount of Rs.1,15,445/- on account of construction of retaining wall. Similarly, learned first appellate Court taking note of the statements of PW-1 and PW-5 has awarded an of amount of Rs.12,800/- on account of damages to the apple trees. As per PW-1, 8 apple trees of the age of 20 years were rt damaged in the process of sliding. PW-5, Madan Singh Thakur, Horticulture inspector stated that the cost of one apple tree having age of 20 years is Rs.1600/-and as such, learned first appellate court on the basis of the statement given by PW-5 rightly awarded an amount of Rs.12,800/- on account of the damage caused to the 8 apple trees. In total Rs. 1,15,445/- has been rightly awarded by the learned first appellate Court to the plaintiff on account of the damages caused to the apple trees existing on the land of the plaintiff as well as expenditure incurred on the construction of the retaining wall.
28. Accordingly, this Court after examining the entire evidence available on record is unable to accept the contention put forth on behalf of the counsel for the appellant in RSA No.576 of 2007 that the judgment and ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...24...
decree passed by learned first appellate Court is not based upon the correction appreciation of the evidence available on .
record. Similarly, RSA No.146 of 2008 filed by State of H.P also deserve to be dismissed because there is ample evidence as has been discussed in detail to demonstrate that damage was caused to the land of the plaintiff by the action of the defendant/State, who later on by spending an amount, as of indicated above, constructed the retaining wall. Similarly there is ample evidence on record to demonstrate that 8 fruit rt bearing trees of the plaintiff were got damaged and as such, this court is unable to accept the contention put forth on behalf o the appellant-State.
29. Consequently, in view of the detailed discussion made hereinabove, this court is of the view that no interference whatsoever, of this Court is called for in the present appeals preferred by the parties mentioned in the memo of parties. Bare perusal of the judgment passed by learned first appellate Court suggest that same is based upon correct appreciation of evidence adduced on record by the respective parties and as such, same deserve to be upheld.
Accordingly, substantial questions formulated at the time of admission of the appeals are answered accordingly and both the appeals filed by the respective parties are dismissed being ::: Downloaded on - 15/04/2017 20:47:01 :::HCHP ...25...
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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