Shanta Ram Padwalkar vs The State Of Karnataka
2022 Latest Caselaw 12602 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 27TH DAY OF OCTOBER, 2022

                         BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

     REGULAR SECOND APPEAL NO.100781 OF 2017

BETWEEN:

SHANTA RAM PADWALKAR
AGE:56 YEARS, OCC: EX-SERVICEMAN,
R/O. HOTEGALI VILLAGE, TQ & DIST. KARWAR,
NOW RESIDING AT KAIGA, TQ. KARWAR,
DIST. UTTAR KANNADA,
KARWAR - 581 400.
                                            ...APPELLANT

(BY SRI.MAQBOOL PATIL., ADVOCATE FOR
      SRI.K.L.PATIL., ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       REP. BY THE DEPUTY COMMISSIONER,
       UTTAR KANNADA, KARWAR - 581 301.

2.     THE CHIEF SECRETARY,
       ZILLA PANCHAYAT,
       UTTARA KANNADA,
       KARWAR - 581 301.

3.     THE ASSISTANT EXECUTIVE ENGINEER,
       ZILLA PANCHAYAT ENGINEERING (SUB DN.)
       KARWAR - 581 301.
                                         ... RESPONDENTS
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      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 01.07.2017, PASSED
BY THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE, KARWAR,
IN R.A.NO.16/2016, AND CONSEQUENTLY SET ASIDE THE
JUDGMENT AND DECREE DATED 03.08.2016, PASSED BY THE
CIVIL JUDGE, KARWAR, IN O.S.NO.03/2018, ETC.,

     THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Sri.Maqbool Patil., learned counsel on behalf of

Sri.K.L.Patil., for appellant has appeared in person.

2. This appeal is from the Court of the Addl. Senior

Civil Judge, Karwar.

3. For the sake of convenience, the parties shall be

referred to in terms of their status and ranking before the

trial Court.

4. The facts are quite simple and are stated as

under.

It is stated that plaintiff is the owner of agricultural

land bearing Sy.No.9/02 situated at Hotegali village,

measuring to an extent of 22 Guntas out of 30 Guntas. He

is cultivating the land and is in actual possession and

enjoyment of the same. It is stated that he is growing

paddy crop in the said land and is earning Rs.5,000/- per

month. It is further stated that in the month of February

2005, the Chief Secretary, Zilla Panchayat, Uttar Kannada,

Karwar and the Assistant Executive Engineer, Zilla

Panchayat Engineering (sub division), Karwar, started

construction of a Well under the Government scheme in the

adjacent land which belongs to one Pandurang Soma Tarkar

and Ganapati Soma Tarkar.

It is said that the said land is situated on higher level

than the plaintiff's land. At the time of digging the well, the

Chief Secretary and the Assistant Executive Engineer have

dumped the mud and the stored mud is flowing into the

plaintiff's land. Hence it was contended by the plaintiff that

his land has become unfit for cultivation and he has not

cultivated his land and he has suffered loss of Rs.5,000/-

per year. It is also said that he approached the Gram

Panchayat concerned and requested them to remove the

waste mud, but there is no response. Hence, plaintiff was

constrained to seek shelter under the Court of law and has

filed the present suit seeking appropriate relief.

After service of summons, the defendants appeared

through their counsel and the third defendant filed written

statement and the same has been adopted by the second

defendant.

The defendants denied the plaint averments. It was

contended by them that they have dug the Well under

Panchayatraj scheme in the land of one Pandurang Soma

Tarkar and Ganapati Soma Tarkar. The mud dug out from

constructing the Well is equally spread in the land of

Pandurang Soma Tarkar and Ganapati Soma Tarkar. Hence,

the allegation that the mud is flowing into the land of

plaintiff during rainy season is false. They also contended

that there is no cause of action. Among other grounds they

prayed for the dismissal of the suit.

Based on the above pleadings, the Trial Court framed

the following issues.

1. Whether the plaintiff proves regarding spreading of the mud by the defendant No.2 and 3, because of that his land become barren, hence, he sustained loss of crop?

2. Whether the plaintiff entitled for the damages from the defendant No.2 and 3 as prayed?

3. What order or decree?

To substantiate his contention, the plaintiff got

examined himself as PW1 and examined one more witness

Gaja Omu Padavalkar as PW2 and produced twenty-seven

documents which were marked as Exs.P1 to P27. The official

of the defendant got examined as DW1.

On the trial of the action, the suit came to be

dismissed. On appeal, the Appellate Court confirmed the

Judgment and Decree of the Trial Court. Hence, this Regular

Second Appeal is filed under Section 100 of CPC.

5. Leaned counsel for appellant has urged several

contentions.

6. Heard the contentions urged on behalf of

appellant and perused the appeal papers with care.

The suit giving rise to this appeal was filed by the

plaintiff seeking damages and mandatory injunction. The

specific contention of the plaintiff is that Chief Secretary and

the Assistant Executive Engineer have dug the Well and

during the rainy season the stored mud is flowing into his

land and thus the land has become unfit for cultivation. He

has suffered loss. Contending that it is the negligent act

of the defendants and hence, he has claimed damages.

It is not in dispute that a Well is dug in the land of

one Pandurang Soma Tarkar and Ganapati Soma Tarkar.

The defendants had given contract to dug the Well. Plaintiff

has alleged that the defendants have acted negligently and

hence he is entitled for damages. It is pivotal to note that

the plaintiff has not made the Contractor as a party to the

suit.

Suffice it to note that plaintiff has specifically pleaded

that he has grown paddy and other crops and due to the

flow of the mud, he is not able to cultivate the land and

hence he has suffered loss and claimed damages. It is

relevant to note that plaintiff has failed to prove that he has

grown crops. Further, there is nothing on record to show

that the second and third defendant have acted negligently

to claim damages from them.

The Trial Court in extenso referred to the material on

record and concluded that plaintiff has failed to prove the

negligent act and has also failed to prove that he has

suffered loss. On appeal, the Appellate Court re-appreciated

the evidence and confirmed the Judgment and Decree of the

Trial Court. I am satisfied that both the Courts have rightly

dismissed the suit. I find no reason to invite interference in

findings of fact recorded by both the Courts.

I do not find any error in the finding of facts. The

same does not call for any interference. I find it necessary

only to say this much that I am not prepared to differ from

the view taken by the Trial Court and by the Court of appeal

as to the question of fact. To conclude I can say only this

much that the Trial Court and the First Appellate Court

concurrently arrived at a finding of fact, the High Court in

second appeal cannot reverse the said concurrent findings

under ordinary circumstances.

It is perhaps well to observe here that after the 1976

amendment, the scope of Section 100 of CPC has been

drastically curtailed and narrowed down. The High Court

would have jurisdiction of interfering under Section 100 of

CPC only in a case where substantial question of law is

involved and those questions have been clearly formulated

in the memorandum of appeal. No substantial questions of

law arise for consideration in this second appeal.

In the result, I find no merit in this appeal and

accordingly it is dismissed at the stage of admission.

Sd/-

JUDGE

MRK