H.R. Maralusiddaiah and Others vs The Executive Engineer Transmission Division, K.P.T.C.L. and Others

Ravi V. Malimath, J.—The case of the plaintiffs is that the property bearing No. 70/1P measuring 1 acre 28 guntas and Sy. No. 70/2P measuring 1 acre 12 guntas situated at Bettadathavaregere village, Aruthapura Hobli, Tarikere Taluk, is in the ownership and possession of the plaintiffs. That a borewell was dug. by investing a sum of Rs. 15,860/-. That after the digging up of the borewell the plaintiff gave an application to the Assistant Executive Engineer, KPTCL, for electric connection. The plaintiff was intimated that his application was under consideration. However that due to non-availability of electricity the plaintiff obtained a generator on lease basis and fixed the same to provide water to the arecanut trees. There were more than 100 arecanut trees. Huge amounts were spent for the same. The defendants without prior intimation established a 400 KV line over the borewell which is situated in Sy. No. 70/1P due to which the plaintiff was unable to conduct any repairs or maintenance work on his borewell. He made several representations to the concerned authorities and thereafter issued a legal notice on 26-9-2002. That due to the high tension wire he was unable to remove the borewell due to which he sustained heavy loss which destroyed his arecanut trees due to non-availability of water. Hence, he requested the defendant to provide suitable compensation. That due to the acts of the defendant the plaintiff suffered a financial loss which has affected his livelihood. A legal notice was issued seeking for compensation of Rs. 75,860/-. Since the same was not paid the instant suit was filed seeking for damages along with the interest. On service of summons the defendant entered appearance and denied the plaint averments. They submitted that there was no reason for any loss to be sustained by the plaintiff. That what was stated by the defendant was that the plaintiff should seek permission of KPTCL for carrying out the repairs. That compensation has already been paid by the KPTCL towards loss of arecanut trees. Hence, it was prayed that the suit be dismissed.

Based on the pleadings the trial court framed the following Issues:--

"1) Whether the plaintiff proves that he gave an application to KPTCL Tarikere for electric connection?

2) Whether the defendant proves that the suit is bad for non-joinder of KPTCL Chief Engineer, Superintending Engineer and Assistant Executive Engineer?

3) Whether defendant proves that the plaintiff has already received compensation for giving permission to put up 400 KV line on his land?

4) Whether the plaintiff proves that he suffered loss as averred in the plaint and is entitled for the compensation from the defendant?

5) Whether the plaintiff proves that he is entitled for the relief as sought for?"

In support of the case of the plaintiffs, the 2nd plaintiff was examined as P.W.1 and another witness and got marked Exs.P-1 to P-19. The 5th defendant was examined as D.W.1 and two other witnesses and got marked Exs.D-1. The trial court held Issue No. 1 in affirmative and Issues 3, 4 and 5 partly in affirmative and Issue No. 2 would not survive for consideration and decreed the suit against defendants 1 to 5 for payment of damages to an extent of Rs. 30,860/- along with the interest from the date of the suit till the date of the decree. Aggrieved by the same, the defendants preferred a Regular Appeal which was allowed. The Judgment and decree of the trial court was set aside. The suit was dismissed. Hence, the present second appeal by the plaintiffs.

By the order dated 30.10.2013 the appeal was admitted to consider the following substantial questions of law:

"(a) Whether the First Appellate Court is justified in giving a finding with regard to non-utilization of the water on account of high extension wire running over the bore well and thereby reversing the finding of the Trial Court?

(b) Whether the First Appellate Court is justified in coming to a close quarter while upturning the judgment of the Trial Court which is based on factual assessment of the evidence in the light of the principles reiterated by the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., ."

The learned counsel for the appellant contends that the first appellate court committed an error in misreading the material facts on record. That the findings recorded by the appellate Court are unsustainable. That the well considered order of the trial court does not call for any interference. That the appellate Court exceeded its jurisdiction in re-appreciating the evidence and holding the same adverse to the plaintiffs.

On the other hand, the learned counsel appearing for the respondents-defendants defends the impugned order. He contends that the first appellate court has rightly passed the impugned order which does not call for any interference. That the misreading of the evidence of the trial court was rectified by the appellate Court on the proper appreciation of the evidence. That the compensation having already been paid towards the loss of arecanut trees, the plaintiffs are not entitled for any further compensation. Hence, he pleads that the appeal be dismissed.

The learned counsels submit that the substantial questions of law that have been framed at the stage of admission requires to be reframed.

I have heard the learned counsels and examined the records. Consequently, the substantial questions of law are reframed as follows:

"Whether the Judgment and decree of the first appellate court is erroneous in reversing the findings of the trial court with regard to grant of compensation due to failure in repairing the borewell?" 9. The primary contention of the plaintiff is that due to the installation of the high tension wire above the borewell dug by him he was unable to repair the said borewell. In the absence of any repairs to the said borewell water could not be pumped. Therefore the arecanut trees withered away. Therefore he set up a claim with regard to the cost of digging up the borewell and installation of motor and cable, iron pipes fixed in the earth, loss of areacanut trees and future loss quantifying the same at Rs. 75,840/-. The trial court having considered the evidence on record and taking into consideration the fact that the compensation for the loss of arecanut trees was already granted, was of the view that the suit could be decreed for Rs. 30,860/-. The claim set up by the plaintiff towards various expenses incurred were also gone into by the trial court. However, the appellate Court took a different view of the matter holding that the plaintiffs did not demonstrate that the borewell failed, which required removal of pipes from the ground though water source was available in the ground. That there was no prohibition imposed by the defendants to remove the pipes from the borewell. That there was no hurdle for the plaintiffs to remove the pipes from the borewell to a height of 20 feet. Nothing else is required to disprove the case of the plaintiffs. Hence, the findings recorded by the trial court was reversed.

On considering the Judgment of the appellate court, I am of the considered view that it committed an error in misreading the material evidence on record. The material on record as admitted by the defendants themselves would show the induction of the water pipes and drawing up of High tension cable wire of 400 KV line. However, the appellate court was of the view that there was no hurdle for the plaintiffs to remove the pipes from the borewell at the height of 20 feet. Therefore the appellate court fell in error in making out a case which was not even pleaded. The specific case of the plaintiff is that he was unable to pull out the borewell in order to effect the repairs due to the fixation of borewell. It is not expected that the plaintiff himself would pull out the pipes in order to effect the repair to the borewell. Therefore to hold that there was no impediment for the plaintiff to pull out the pipes and get it repaired cannot be accepted when admittedly, the borewell could not have been repaired by the plaintiff himself in the given facts and circumstances of the case. It is also admitted that the borewell was installed much prior to the installation of the high tension wire. If the High Tension Wire already existed, necessarily it would not be possible to dig the borewell.

So far as grant of compensation is concerned the same was granted towards loss of arecanut trees. No compensation was awarded so far as the claim set up by the plaintiff on the various heads such as iron pipes, motor cable etc. Under these circumstances, the trial court was justified in decreeing the suit as claimed by the plaintiff to an extent of Rs. 30,860/- only along with interest. Consequently, the first appellate court was not justified in recording the finding with regard to non-utilisation of the water.

Hence, the substantial question of law is answered by holding that the first appellate court was not justified in reversing the finding of the trial court with regard to failure to repair the borewell due to the high tension wire running exactly over the borewell. Consequently, the judgment and decree passed by the Principal District Judge, Chikkamagaluru, dated 15.12.2010, passed in R.A. No. 31/2008 is set-aside. The judgment and decree dated 23.02.2008 passed in O.S. No. 19/2003 passed by the Civil Judge (Sr. Dn.) and Prl. J.M.F.C, Tarikere is affirmed.

The parties to bear their own costs.