Himachal Pradesh High Court

State Of H.P. & Others vs Molak Ram Kashyap on 28 July, 2023

Bench: Mamidanna Satya Rao

      IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                              RSA No.506 of 2018




                                                               .
                                               Decided on: 28.07.2023





            State of H.P. & others                             ...Appellants





                                     Versus

            Molak Ram Kashyap                              ...Respondent




      Coram
      The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice

      Whether approved for reporting?
      For the appellants:     Mr. Arsh Rattan, Deputy Advocate

                              General.

      For the respondent:      Mr. Romesh Verma, Senior Advocate
                               with Mr. Sanket Sankhyan, Advocate.



      M.S. Ramachandra Rao, Chief Justice (Oral)

This Second Appeal is preferred by the State of Himachal

Pradesh challenging the judgment and decree dt. 29 th March, 2018 in

Civil Appeal No.25-S/13 of 2017 of Additional District Judge (II),

Shimla, confirming the judgment and decree dt. 20th March, 2017 in

Civil Suit No.185.01 of 2013/11 of the Civil Judge(Senior Division)

Court No.1, Shimla, Himachal Pradesh.

2) The respondent is owner of land under Khata no.51, Khatauni

no.158, Khasras no.1103, 1107 and 1108 of Mauja Dharogra

Pargna Saraj, Tehsil Sunni, District Shimla.

3) He executed a gift deed on 19.06.2004 of a portion of the land

owned by him for a construction of a road from Malgipul to

Dharogra.

4) He alleged that the rest of the land is fertile and valuable, but the

contractor engaged by the appellants, negligently constructed the

road causing damage to the land and fruit bearing trees on the

remaining land, including an orchard.

5) It is alleged that the contractor dumped huge quantity of debris and

stones on the land of the respondent, ignoring repeated requests of

the respondent to stop doing so resulting in damage to the land.

6) The respondent issued a letter dt. 4th September, 2007 to the

Secretary PWD Himachal Pradesh Government and also a demand

notice dt. 8th January, 2008 specifically claiming damages for the

land of the respondent; and since the issue was not resolved, the

suit was filed seeking recovery of Rs.3,25,880/- alongwith future

interest from the date of filing of the suit till realization and also

permanent prohibitory injunction for restraining the appellants

from interfering with the suit land directly or indirectly in any

manner or throwing any debris from road site towards their land.

7) Written statement was filed by the appellants admitting the gift of

the land by the respondent, but they denied that the rest of the land

was valuable and also denied that there are apple plants grown over

it.

8) It was also denied that there was no damage done to the land

retained by the respondent and it was contended that the contractor

had taken all precautions, but despite the same due to hilly and

sloppy terrain, some debris and boulders were bound to fall down.

It is contended that thereafter quick action was taken by the

appellants and the contractor was directed to remove the debris. It

is contended that only the contractor is liable for the damages

caused by his negligence and not the appellants.

9) On the basis of these pleadings, the trial Court framed the

following issues:

"1. Whether the plaintiff is entitled for damages to the tune of Rs.3,25,880/- alongwith future interest @ 12% per annum, as prayed for? ...OPP

2. Whether plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for? ...OPP

3. Whether the suit is not maintainable? ...OPD

4. Whether the plaintiff is estopped to file the present suit, as alleged? ...OPD

5. Whether the suit is bad for non joinder of

.

necessary parties, as alleged? ...OPD

6. Whether the suit is not properly valued for the purposes of court fee and jurisdiction, as

alleged? ...OPD

7. Whether the present suit do not disclose any cause of action, as alleged? ...OPD

8. Whether the plaintiff has not approached this court with clean hands, as alleged? ...OPD

9. Relief."

10) Before the trial Court, the respondent examined PW-1 to PW-10

and marked Ext. PW4/A to Ext. PW10/H. The appellants examined

DW-1 and DW-2 and marked Ext. DW2/B and DM1 to M4.

11) After considering the oral and documentary evidence, the trial

Court came to the conclusion that while constructing the road, no

proper care was taken to protect the remaining land of the

respondent, which he had not gifted to the State, and there was

rashness and negligence in executing their own contract by the

contractor.

12) The trial Court held that perusal of the jamabandi Ext. PW8/A

proved that there were fruit bearing trees on the remaining portion

of the land retained by the respondent, that the report Ext PW4/A

proved that damage was caused to the land on which fruit bearing

trees were existing, and this demarcation was carried out by the

revenue officials who admitted during cross-examination that when

the road was being constructed, damage was caused to the fruit

bearing trees as well as remaining land of the respondent.

13) He also relied on Ext. PW7/C which fixed the loss of fruit bearing

trees as Rs.25,880/-.

r He further relied on Ext. PW4/A and

PW10/C reports to hold that damage is not only caused to the fruit

bearing trees, but also to the vacant land and beside this

compensation further compensation was also required to be paid to

the respondent.

14) The trial Court also relied on the evidence of PW-9, a Civil

Engineer, who assessed the damage in his report Ext. PW8/A

showing that loss to the tune of Rs.2,93,253/- was caused. It held

that non-impleadment of the contractor was not fatal because even

the copy of the agreement entered into by the appellants with the

contractor was not placed on record.

15) The trial Court also granted relief of injunction restraining the

appellants from interfering over the suit land directly or indirectly

in any manner, and also restrained the appellants from throwing

any debris or stones from the road site towards the suit land. It also

directed them to remove the debris and stones which they have

thrown towards the suit land and restore the suit land to its original

position.

16) This was challenged by the appellants before the Additional

District Judge (II), Shimla, but the said appeal was also rejected,

confirming the findings of the trial Court.

17) The appellate Court held that there was admission in the pleadings

and evidence of the appellants' witnesses proving the damage to

the land and orchard of the respondent during the construction of a

link road by throwing debris and boulders thereon.

18) It also observed that the appellants had not led any cogent and

convincing evidence to show that the link road was constructed

strictly as per the technical specifications, and that the witnesses of

the appellants had admitted in their cross-examinations that there

were apple trees on the land of the respondent which were

damaged during the construction of the link road, and that the

assurance was given to the respondent that damage done to his land

will be made good.

19) It relied on the judgment in Rylands vs. Fletcher (1868) LR 3 HL

330 and held that it was the duty of the appellants to take

precautionary measures to prevent the sliding of debris into the

land of the respondent situated on the lower side of the road and

after completion of the construction they should have taken action

to compensate the respondent to the damage caused to his land and

orchard.

20) Challenging the decision, this RSA is filed.

r This RSA was

admitted on 26.11.2018 to consider the following substantial

question of law:

" Whether the judgments and decrees passed by

the learned Courts below are perverse inasmuch as they are based upon mis-reading of the

pleadings as also the oral and documentary evidence?"

21) Learned counsel for the appellants sought to contend that the

judgments of the trial Court as well as appellate Court are both

perverse.

22) After carefully considering the pleadings and entire evidence on

record and the reasons recorded by the trial Court as well as the

appellate Court, I do not find any perversity in the said findings

recorded by them.

23) The said findings had been recorded on the basis of certain

admissions made by the witnesses examined by the appellants

themselves and therefore cannot be said to be perverse.

24) I therefore do not find any merit in the RSA, which is accordingly

dismissed.