NARESH MAHAJAN Vs. GOVIND SINGH

JUDGEMENT

(1.) -This Regular Second Appeal is directed against the JUDGMENT of the learned District Judge, Chamba in Civil Appeal No. 4 of 1998 decided on 29.9.1999 whereby he partly allowed the appeal filed by the appellants (here -in -after referred to as the defendants) and modified the JUDGMENT and decree dated 15.12.1997 passed by the learned Senior Sub Judge, Chamba in Civil Suit No. 572 of 1993.

(2.) BRIEFLY stated the facts of the case are that respondent Govind Singh (here -in -after referred to as the plaintiff) filed a suit for recovery of Rs. 87,980/ - against the defendant Shri Sita Ram. The allegation in the suit was that the plaintiff is owner in possession of land situate in Khata Khatouni No. 260/287 Khasra No. 7131 measuring 404 square yards, in Chamba town and on this land one residential house, court -yard, orchard and agricultural land was existing. The deceased Sita Ram was owner in possession of adjoining land in Khasra Nos. 7127, 7137 and 7136 where he set up a Petrol Pump. The land of the defendant Sita Ram was at a higher level. According to the plaintiff, deceased Sita Ram despite objections by the plaintiff and without any permission constructed a Kucha retaining wall 42 to 45 feet in height and 3 to 4 feet wide on the debris which was left after construction of the Petrol Pump. The plaintiff requested Sita Ram not to construct such a huge retaining wall. In May, 1993 the aforesaid retaining wall developed cracks and the plaintiff requested the defendant to take steps to prevent further damages. Notice was issued also. On 10.7.1993, a major portion of the aforesaid retaining wall gave way and fall on the property of the plaintiff and damaged his store, septic -tank, latrine, kitchen, bath room, electric wiring, water pipeline, etc. The plaintiff filed a suit claiming damages of Rs.87,980/ -.

(3.) THE defendants filed an appeal before the learned lower Appellate Court. One of the grounds taken was that since the defendant had expired the cause of action to continue the proceedings did not survive. The learned lower Appellate Court did not accept this contention of the defendants -appellants but reduced the damages from Rs.87,980 to Rs. 43,558/ -. The defendants have filed the present appeal. The respondent has filed cross -objection praying that the decree of the trial Court be restored and also praying that he be awarded interest from the date of filing of the suit till payment/deposit of the amount.