DISTRICT BOARD Vs. PURE MANDRA COLLIERY AND ORS.

JUDGEMENT

(1.) These two appeals have been preferred by the appellant, the District Board through its Chairman each against two separate judgments and decrees in money suits dismissing the claim of damages against defendant -respondents in each suit for Rs. 17,754/ - as detailed under Schedule 'B' and 'C' of the plaint. Since both the suits given rise to common questions of law, the two appeals against them were heard together. Therefore, I propose to deal with both the appeals together and this common judgment will govern both of them. The plaintiff -appellant instituted the two suits on the 23rd December, 1959 claiming equal amount of damages from the defendant -respondents in both the suits. It will be worthwhile to note the case as made out by the appellant in its plaint in the two suits. The plaintiff is a body corporate under the Bihar and Orissa Local Self Government Act, 1885 with power to acquire and hold property both moveable and immoveable and being entitled to sue in its corporate name. As such it held a road commonly known, as "Phularitand Dumra Road", the surface right of which is owned and maintained by the plaintiff for the purposes of the traffic. The said road starts from Mile 11 of Rajgunj and passes through several collieries and it serves important purpose for transporting coal, colliery machineries etc.

(2.) Plaintiff's case, in Money Suit No. 64 of 1959, in brief was that defendant -respondent no. 2 in First Appeal No. 306 was working a colliery commonly known as Baghmara East Colliery (defendant -respondent no. 1), situated in village Mandra, Pergana Jharia in the district of Dhanbad. A portion of the aforesaid road of the plaintiff passes through the said village. Baghmara East Colliery is located on the west side of the road, whereas Pure Mandra Colliery which is defendant no. 1 in the other Money Suit No. 63 of 1959 which has given rise to First Appeal No. 305 of 1964, is located on the east side of the road. Plaintiff's case was that the road was in its existence since over 40 years, and had all along been receiving support for its existence from the underground strata of coal and other layers of earth, and defendant -respondent no. 2 of the two suits who, were working the respective collieries, had by unscientific extraction of coal wrongfully removed the support which the road was all along receiving and thereby sometime in January, 1957, they caused a subsidence on certain area of the road as detailed under Schedule. 'A' of the plaint filed in the two suits. Its further case was that due to the subsidence, the plaintiff suffered heavy loss. Its road became unsafe, danger signals and barriers had to be provided at both ends of the danger -portion of the road, and watchmen had to be appointed by the plaintiff to guard the subsided portion throughout the day and night. For making those arrangements the plaintiff had to incur expenses of Rs. 1329/ - as detailed under Schedule 'B' of the plaint Further according to the plaintiff, due to said extraction of coal by the defendant -respondents a void was created underground the road, which greatly impaired the safety of the road. In order to restore safety of the road the void required to be stowed with sand which would cost Rs. 16425/ - as detailed under Schedule 'C' of the plaint. Therefore, the plaintiff claimed a total sum of Rs. 17,754/ - under Schedules 'B' and 'C' in each suit from the defendant -respondents. It also pleaded that the defendant -respondents having allowed the nuisance by the illegal extraction to continue, made themselves liable for the said damages to the plaintiff.

(3.) In the suit which has given rise to First Appeal No. 306 of 1964, defendants 1 to 4 filed separate written statement and contested the suit accordingly. Defendant no. 4 filed written statement on behalf of defendant no. 1 whereas defendant no. 2 inter alia stated in his written statement that he never worked any coal land within the distance of about 500 ft. from the road in question. He closed working in the colliery sometime in 1954 and sold it to defendant no. 4 sometime in 1956. He denied to have extracted any coal close to the road or removed the support of the road as alleged by the plaintiff, and stated that no subsidence was caused on any portion of the road due to his working in the colliery. He also stated that the level of the land by the side of the road sunk one or two feet at a distance of about 10 ft. from the road sometime in the end of 1955 or in the beginning of 1956, but it settled down within a few months in 1956 and since then heavy trucks loaded with coal and machineries were plying on the road, and the road was not at all unsafe. The plaintiff had not suffered any loss and danger signals or barriers were placed on the road nor any watchman was appointed as alleged by the plaintiff. He also pleaded that the suit was barred by limitation. Defendant no. 3, Ram Kishore Agarwal son of Badri Das Agarwal also in his written statement inter alia stated that he was neither the owner of Baghmara East Colliery nor he was working the colliery. He had no knowledge about any subsidence. The colliery originally belonged to his father Badri Das Agarwal, who by registered sale deed of 1950, sold the same to defendant no. 2, who was since then in exclusive possession of the same. He also pleaded that the suit was barred by limitation and it was vague and indefinite. The plaintiff was not entitled to any relief against him. Defendant no. 4 Jiwan Lal Sunda in his written statement pleaded among others, that he purchased the colliery after the alleged date of subsidence. Therefore, he was not at all liable for any damage.