RFA/128/2016 of SUKH RAM Vs STATE OF HP on 31 December 2019

1. RFA No. 128 of 2016

Sukh Ram.

versus

State of H.P. & others

2. RFA No. 381 of 2016

…..Appellant

….Respondents.

State of H.P. & another

versus

Sukh Ram & another.

...Appellants

...Resondents. p

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. AmitHimalvi, Advocate, for theappellant in RFA No. 128 of2016 and for respondent No.1in RFA No. 381 of 2016.

1 Whether reporters of the local papers may be allowed to see the judgment?

For the respondents:

Mr. Hemant Vaid Addl. A.G.with Mr. Vikrant Chandel &Mr. Gaurav Sharma Dy. A.Gs.for respondents No. 1 &2 inRFA No. 128 of 2016 and forthe appellants in RFA No. 381of 2016.

Mr. Y.P.S. Dhaulta, Advocate,for respondent No.3 in RFANo. 128 of 2016 and forrespondent No.2 in RFA No.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 suitclaim became rested, upon, (a) inasmuch, as, duringthe course, of, construction of Sarain-Jhokar Road, in,Tehsil Chopal District Shimla, H.P., hence, in December,2008, rather, co-defendant No.3, who became awarded the work, of, execution, of, the afore road, throwingdebris, upon, the plaintiff’s land, hence, damaging 80

fruit bearing trees,growing thereon (b) and, also hencetowards the expenditure, incurred or incurable by theplaintiff, for, removal of debris, as became thrown, upon,his land, (c) besides toward costs of erecting retainingwall(s), for, protecting his land, from, landslides. 2.Through the impugned verdict, recorded,upon Civil Suit No. 3-S/1 of 2015/11, by, the learnedDistrict Judge (Forest), Shimla, the latter partly decreedthe plaintiff’s suit, for, a sum of Rs. 13,73,179/-, alongwith costs, (a) and, the afore part decreeing, of, theplaintiff’s suit, was, made dependent, upon, Ext. PW-1/A, and, exhibit whereof, is, reflective, vis-a-visdamage, to, 80 fruit bearing trees, hence occurring, onthe plaintiffs land, rather becoming encumbered.However, the learned trial Judge, declined, to decree,the, further suit claim, towards monetary damage(s), vis-a-vis, expenditure(s) to be incurred, by the plaintiff, for,removal of debris, as, became purportedly thrown onto his land, by defendant No.3, (b) besides also declined, to,decree qua him, the further suit claim, henceappertaining, to, defendant No.3, becoming directed, to, erect retaining wall(s), for, protecting his land, from,landslides. The plaintiff becoming aggrieved, from, thenon-decreeing, vis-a-vis, him, the, afore alluded suitclaim(s), and, also the defendants, becoming aggrieved,from, the afore part decreeing, of, the plaintiff’s suitclaim, hence, by the learned trial Court, rather boththereagainst(s) rear RFA No. 128 of 2016, and, RFA No.381 of 2016, before this Court, whereupon, they, striveto beget reversal, of, the afore made verdict, by, thelearned trial Judge.

3. Since both the afore RFAs, arise, from acommon verdict, hence, both are amenable, for, acommon verdict, becoming made thereon.4.A perusal of Ext. PW-1/A, proven, by PW-1does with explicit candor, unveil, vis-a-vis, damage

becoming caused, to, 80 apple bearing trees, as, existedon the suit land, and, there is also an enunciationtherein, hence, with specificity, vis-a-vis, the aptparameters, as, became borne, in, mind, made, by, theauthor, of, Ext. PW-1/A, in, his assessing damages, vis-a-vis, the afore apple bearing trees, existing, on, theplaintiff’s land. A reading of the cross-examination ofPW-1, as, conducted, upon, him, by the learned defencecounsel, does not disclose, vis-a-vis, Ext. PW-1/A,becoming falsely prepared, in as much as, the depictiontherein, qua 80 fruit bearing trees existing, upon, thesuit land being false, or, unauthentic, (a) nor anysuggestion became put, to, PW-1, by the learneddefendants’ counsel(s), upon, theirs holding, him, cross-examination, hence suggestive, vis-a-vis, the appositeparameters, remaining irrevered, by PW-1, in, hispreparing, PW-1/A. The sequel thereof, is, qua reliance,made, upon PW-1/A, by, the learned trial Judge, for, 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 fromany infirmity. Furthermore, conspicuously, when thedemarcation report, as, borne in Ext. PW-5/B, doessuccor, the, afore enunciation(s) made, in, Ext. PW-1/A,thereupon, the, defendants’ challenge, through, RFA No.381, of, 2016, vis-a-vis, the afore part decreeing of thesuit claim, does not, warrant interference, from, thisCourt.

5. Be that as it may, the, learned counsel, for,the plaintiff, has, contended with much vigor, before thisCourt, qua, hence the non decreeing(s), vis-a-vis,plaintiff’s, further suit claim, and, appertaining, to, (a)the cost(s) or expenditure(s), as, incurrable, for, removalof debris, as, became thrown, onto the suit land, by, co-defendant No.3, during, his executing the afore publicwork, (b) and, also qua the declining, vis-a-vis, plaintiff, the further suit claim, and, appertaining to defendants,becoming injuncted, to, erect a retaining wall, for,protecting the suit land, from landslides, rather bothbecoming infirm, or, fallible, as, the learned trial Judge,has, omitted to mete deference, to, PW-2/A. However,for the reasons to be assigned hereinafter, the non-meteing of credence, vis-a-vis, Ext. PW-2/A, hence, bythe learned trial Judge, is, neither unmeritworthy, norsuffers, from, any illegality, as, (a) during the course ofpreparation of Ext. PW-2/A, the author thereof, not,ensuring, the apt joining(s), of, all the defendants, (b) hisomitting to join, the, revenue officer concerned, for,hence ensuring eruption, of, credible evidence, vis-a-vis,the echoings, made in Ext. PW-2/A, vis-a-vis, from anypurported dereliction(s), on, the part, of, co-defendantNo.3, in his executing, the, afore public work, histhrowing debris, onto the suit land, (c) with furtherdisclosure(s) therein, for, hence therethrough(s), it

Conclusion

becoming completely established, qua, the aforeechoings, made therein, becoming related, to, the suitland. Consequences, of, non joining(s), of, revenueofficer(s) concerned, by the author, of, Ext. PW-2/Ahence constrain, an inference from this Court, vis-a-vis,the detailings therein, vis-a-vis, throwings, of, debris, onto the suit land, by co-defendant No.3, and, also, vis-a-vis, the necessity, of, erection, of, retaining wall(s), for,protecting, the, suit land, from, landslides, ratherbecome unamenable, for, acceptance, (a) as, the aforedetailings therein, do, want of association, of, therevenue officer concerned, by, the author of, Ext. PW-2/A, rather capitalize, an, inference, vis-a-vis, Ext. PW-2/A, become not proven to stand related, to, the suitland. Moreover, since the construction of the afore road,occurred in the year 2008, and, the extant suit hencebecame instituted, in the year 2011, (b) thereupon theeffect, of, the extant suit, becoming instituted, hence three years, since, the, eruption, of, the apt cause ofaction, rather in the year 2008, is, qua the apt civilwrong or tort, as, attributed to co-defendant No.3,rather, becoming ascribable to acts other, than, anypurported 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 theappeals, are, dismissed, and, the judgment, and, decreeimpugned, before this Court, is, affirmed, and,maintained. Decree sheet be prepared accordingly. Allpending applications also stand disposed of. No order asto costs. Records be sent back forthwith.

31.12.2019

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(Sureshwar Thakur)Judge

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