BINDRA DEVI CHAUHAN Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Appellant Bindra Devi, hereinafter called plaintiff is aggrieved by the judgment and decree, dated July 23, 1998, of the learned single Judge of this Court, whereby her suit for damages, to the tune of rupees ten lacs, which she filed against the respondents-State, of H. P. and the Collector, hereinafter called as defendants, has been dismissed.

(2.) The cause of action, on which the claim of the plaintiff was based, may be summed up thus. The plaintiff had a house on two Biswas of area, bearing Khasra Nos. 1318/1221 situate in Notified Area Committee, Chopal. It was a three-storeyed house,, having ten rooms. On one side of this house, at a lower level, there was a school playground. The defendants with a view to expanding the said school ground and developing it into a stadium, started excavation towards the house of the plaintiff. Bulldozers were pressed into service to do the excavation work. No precautionary measures were taken to protect the aforesaid house and the site under that house belonging to the plaintiff. While doing the excavation work, no retaining walls were, erected. On account of the deployment of the bulldozers for excavation and cutting work, the entire hillock, on which the house of the plaintiff stood, was rendered unstable. This resulted in the sagging and collapse of the house of the plaintiff in July, 1993. Excavation was carried in June, 1993. The value of the house of the plaintiff was about rupees five lacs. The plaintiff alleged that a sum of rupees seven lacs was required to re-construct the house. Further, it was claimed that after the collapse of the house she had to hire some accommodation for her residence. She further alleged that she had some tenants in the building, who vacated it after the damage was caused to it and thus she sustained loss of rental income also. She claimed a sum of rupees ten lacs for the damage to the house, for loss of rental income, for payment of rent of the accommodation, which she hired and for mental torture, which she allegedly suffered due to the damage to the house. Defendants alleged that the suit was not maintainable in the form in which it had been laid and was also bad for non-joinder of necessary parties. It was denied that reckless or indiscriminate excavation was done or that the cause of damage to the building was such excavation. Instead it was alleged that heavy rains had taken place from 9th July to 11th July, 1993 in Chopal area and because of that not only the plaintiff's house but certain other houses had also collapsed or got damaged. Following issues were framed, on the pleadings of the parties: 1. Whether the suit in the present form is not maintainable ? OPP 2. Whether the suit is bad for non-joinder of necessary parties ? OPD 3. Whether the plaintiff suffered any damage on account of the negligence on the part of the defendants, as alleged ? OPP 4. If issue No. 3 is proved in affirmative, whether the plaintiff is entitled for any damages, if so, to what amount ? OPP Relief. 5. At the end of the trial, the learned single Judge held that the plaintiff had failed to prove that her house was damaged due to any act of negligence on the part of the defendants and consequently dismissed the suit. Issues Nos. 1 and 2 were, however, found against the defendants, because they did not press the same at the time of final hearing. Grievance of the plaintiff is that the learned single Judge has not properly scrutinized the evidence on record and that this has led to the wrong finding qua issue No.

(3.) It is alleged that the evidence on record conclusively proves that the house got damaged and ultimately collapsed, necessitating its re-construction due to reckless and indiscriminate excavation, carried out by the defendants on the lower side of the site of the house.