ABHISHEK & OTHERS Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Present Regular Second Appeal filed under Section 100 of Code of Civil Procedure is directed against the judgment and decree dated 21.11.2005, passed by learned District Judge, Shimla, H.P in Civil Appeal No.73-S/13 of 2005, reversing the judgment and decree dated 30.3.2005, passed by learned Civil Judge( Junior Division), Theog, District Shimla, H.P. in civil Suit No.121/1 of 2003.

(2.) Briefly stated facts as emerge from the record are that present appellant (hereinafter referred to as "Plaintiff") filed a suit for recovery of Rs.50,000/- along with cost and interest at the rate of 15% against the respondent(hereinafter referred to as "Defendant") averring therein that plaintiff is the exclusive owner in possession of the land denoted by khasra No. 338, measuring 0-04-04 hectares (11 biswas), situated in Chak Guthan Khas, Tehsil Theog, District Shimla, H.P. He also claimed to be exclusive 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 "MahoriGuthan-Sharmala" road, which passes through part of khasra No.335, which is just below khasra No.338 of 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 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 construct support/breast wall on the spot. In October/ November, 1997-98, eight fruit bearing apple trees having age of 20 years got damaged due to widening process and land-slides 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 the 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 issued under Section 80 C.P.C to the defendant advising them to construct breast wall but defendant paid no heed to the advice/ request of plaintiff.

(3.) The plaintiff constructed breast wall on the spot which is 50 feet long, 14 feet in height and 3 to 4 feet in width with stone and cement in the month of June, 2000.