RAJ PAL CHAUHAN Vs. STATE OF H.P.

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree dated 19th September, 1995 passed by learned District Judge, Shimla whereby the judgment and decree of Senior Sub Judge, Shimla dated 1.1.1993 dismissing the suit of the plaintiff, was reversed. For the purpose of convenience, the appellant hereinafter referred to as the 'plaintiff and the respondent as 'defendant.'

(2.) Plaintiff filed a suit for recovery of Rs. 1,60,630.42 against the defendant by way of damages in the Court of Senior Sub Judge, Shimla, inter alia, contending that the plaintiff through a will became owner in possession of land comprising in Khasra No. 232/159 measuring 34-11 bighas situated in Chak Kalamoo, Tehsil Kotkhai, District Shimla. During the month of August and September, 1988, due to heavy rain, the retaining wall of the road constructed by the defendant immediately above the land of the plaintiff where he had planted orchard came down due to land sliding and the fruit plants of the plaintiff were damaged. The defendant got the damage report prepared through revenue official/agency as the damage was caused due to the various acts of omission and commission of the Public Works Department of the defendant. The damage to the fruit plants was got assessed through Horticulture Department of the defendant and the damage was assessed on the basis of 'Harbans Singh Formula, 1966' based on the price prevalent for the year 1966. In terms of the damage report, the damage caused to the fruit plants was assessed to the tune of Rs. 38,107.50 paise. According to the plaintiff since there has been increase of 402 percent in the price index between the year 1966 till 1988 as per the Consumer Price Index, accordingly the damage caused to the fruit plants ought to have been assessed at Rs. 1,53,190/- instead of Rs. 38,107.50 paise. The plaintiff has claimed an interest of Rs. 44,527.22 paise at the rate of 12% per annum. According to him, the defendant has paid a sum of Rs. 38,107.50 paise. Therefore, he is entitled for the balance suit amount.

(3.) In the written statement filed by the defendant, the stand taken is that due to unprecedented and heavy rain fall in the month of August and September, 1988, the pucca retaining wall had given way and debris had caused partial damages to the fruit trees. However, it is stated that keeping in view the Harbans Singh formula, adequate compensation was awarded to the plaintiff by the defendant. The damage occurred due to an act of God and natural calamities and was beyond the control of Public Works Department. According to the defendant, the damages were assessed by the Horticulture Department and accepted by the plaintiff without protest. The fact that the damage was assessed on the basis of 'Harbans Singh Formula' is admitted. With regard to the applicability of the Price Index for the year 1966, it is stated that the same has not been considered in the assessment as it does not cover the Horticulture Industry.