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Judgment
Kuldip Singh, J
The successor-in-interest of plaintiff has come in second appeal against judgment, decree dated 4.7.2001 passed by learned Addl. District Judge, Shimla in Cross-Objection No. 8-S/13 of 1998 affirming judgment, decree dated 14.10.1997 passed by learned Senior Sub Judge, Shimla District in Civil Case No. 35/1 of 1993. The facts in brief are that Badri Dass father of appellant had filed a suit for damages for recovery of Rs. 1,55,954/- on the averments that he was owner of two storey house at Suni Bazar below the HP PWD road. The respondents No. 1 and 2 had constructed adjacent to the house of appellant one drain about 2 feet in width and 4 to 5 feet in depth after closing other drains and outlets. The drain was not covered. The entire water of Suni Bazar started passing through the said drain which was not properly maintained by respondents No. 1 and 2, the water flowing through the drain spilled over the sides and it started seeping into the foundations of the house of the appellant. The appellant prior to construction of the disputed drain at his own expenses had made proper outlets for draining out the water of his house and hotel, which were removed and uprooted by respondents No. 1 and 2 at the time of construction of the drain.
The appellant was assured by respondents No. 1 and 2 that they would construct drain for proper channelisation of water of both sides of Suni Bazar, but they did not fulfill their promise. The appellant had been repeatedly apprising the respondents No. 1 and 2 to maintain and improve the conditions of the drain so that water did not seep into the foundations of his house. The appellant had also served a notice dated 21.10.1990 on the respondents but without any result.
On account of seepage of water from the aforesaid drain, the house of appellant was badly damaged. The entire building developed cracks and became unsafe in December 1990. A portion of the house adjoining to the drain started collapsing in January, 1991. The appellant had left with no alternative but to demolish the dangerous portion of his house and constructed the same for which he suffered a loss of Rs. 1,55,954/- which according to appellant, respondents are liable to pay.
The suit was contested by the respondents. In the written statement, preliminary objections of limitation, cause of action, non-joinder, estoppel were taken up. On merits, it was asserted that the drain was pucca, which was constructed by PWD prior to 1985, to drain out the entire water of the road on public demand. Suni Bazar was declared Notified Area Committee in the year 1985. The works within the Notified Area Committee were transferred to the Committee. The works within the Notified Area Committee are maintained by Committee. The PWD does not come into the picture. There was no objection from any one when the drain was constructed. The respondents denied their liability to pay any damage or compensation to appellant.
On the pleadings of the parties the following issues were framed:-
Whether the plaintiff has suffered damage to his house by wrong laying of the drain by the defendants
OPP
If issue NO.1 is proved in affirmative whether the plaintiff is entitled to the amount claimed and to what amount?:- OPD
Whether the suit is barred by limitation?:- OPD
Whether the plaintiff has no cause of action?:- OPD
Whether the plaintiff is estopped from filing the present suit?:-OPD
Whether the suit is bad for non-joinder of necessary parties?:-OPD
Relief
Issues No. 1,2 were answered in affirmative, issues No. 3 to 6 in negative. The learned trial Court on 14.10.1997 decreed the suit of the appellant for recovery of Rs. 50,000/- alongwith interest at the rate of 12% per annum from the date of filing of the suit till realization of the entire amount. The State of Himachal Pradesh filed Civil Appeal No. 102-S/13 of 1997 against judgment, decree dated 14.10.1997. The appellant in the said appeal filed Cross-Objections No. 8-S/13 of 1998, appeal and Cross Objections were decided by leaned Addl. District Judge, Shimla by common judgment on 4.7.2001 and dismissed both appeal and cross-objections, hence second appeal which has been admitted on following substantial questions of law:-
Whether the findings of the appellant court if not based on evidence on record is liable to be set aside?
Whether the appellate court has fallen into error in ignoring the documentary evidence on record regarding the damages suffered by the appellant especially Ex.PW5/D and Ex.PW5/E?
I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by learned counsel for the appellant that the Courts below have not rightly appreciated the evidence on record in awarding only Rs. 50,000/- as damages to the appellant against his claim of Rs. 1,55,954/-. The appellant has suffered huge loss due to the negligence of respondents for not constructing and maintaining the drain properly. He has prayed for acceptance of the appeal.
The substantial questions of Law No. 1 and 2 are interconnected, therefore, both of them are taken up for decision collectively. The two Courts below have found respondents negligent in not maintaining the drain which caused damage to the house of the appellant. The respondents have not assailed the judgment, decree dated 4.7.2001 passed by learned Addl. District Judge in Civil Appeal No. 102-S/13 of 1997 nor they have filed any cross-objections in the present appeal. Thus, finding that due to acts and omissions of respondents, the appellant had suffered damage has become final. The only question left in the present appeal is regarding the quantum of damage.
PW-7 Gopal Dass has stated that on account of seepage, the walls of the house were reconstructed, internal walls were demolished and reconstructed. The estimate of reconstruction of the house has been prepared by H.S. Bist. He has stated that he took expert H.S. Bist on the spot, PWD authorities were not informed. The building adjacent to disputed drain was constructed 30/40 years ago by using mud mortar.
PW-5 H.S. Bist expert of the appellant has proved reports Ex.PW-5/A, Ex.PW-5/B, Ex.PW-5/C, estimates Ex.PW-5/D and Ex.PW-5/E. He has stated that the house was about 40 years old. The house shown in Ex.PW-5/F was about 60/70 years old, house was constructed with deodar wood, stones and mud, the house was ''kacha''. In January 1990 he had seen the fallen house. He prepared estimate of that portion of the house which had fallen.
Ex.PW-5/A is the technical report dated 23.12.1990 of H.S. Bist prepared after visiting site on 21.12.1990. In this report there is no observation that the house has been damaged due to seepage of water from the drain. Ex.PW-5/B is the another inspection report dated 27.1.1991 of H.S. Bist. In this report the expert has concluded that the main cause of collapse of the portion is due to drain water seepage which was seeping alongwith the main back wall of the building which was constructed with conventional local material i.e. stone masonry in mud mortar without any concrete etc. Ex.PW5/C is yet another report dated 9.8.1991 of H.S. Bist. In this report he has stated that the building was constructed with local conventional material about 40 years ago. He has observed that Badri Dass Gupta has no option but to reconstruct three rooms fully and partly the other rooms which have been shown separately in the drawings with estimated cost of Rs. 1,56,000/-.
Ex.PW-5/D is the abstract of cost Rs. 1,55,954/-, Ex.PW-5/E is the description of items such as:-
(1) Demolition of stone masonry below ground level upto 1.5 meters depth etc.
(2) Demolition of stone masonry above ground upto floor two level etc.
(3) Dismantling roofing etc.
(4) Cement concrete flooring.
(5) Area of building fully reconstructed.
5(a) Rooms No. 1,2,3
5(b) Area special repaired.
(i) Kitchen
(ii) Bath room and temple.
It has come in the evidence of the appellant that before damage house of the appellant was constructed with stones in mud mortar. There is nothing on record to show what was the value of the said house at the time of damage. PW-5 H.S. Bist prepared the report and has given estimate of new construction of pucca house. The learned trial Court has not recorded a finding what was the market value of the house of the appellant at the time of damage. The learned trial Court has observed that appellant may incur 150,000/- on reconstruction of the damaged portion of the house and this amount has been decreed. Thus, the learned trial Court has awarded a decree for reconstruction of the pucca house and not on account of loss suffered by the appellant due to damage of the old ''kacha'' house.
The appellant has brought nothing on record to show what was the market value of old ''kacha'' house which had fallen. The learned Addl. District Judge has approved the judgment, decree of the leaned trial Court. It appears the two Courts below have decreed the suit of appellant to the extent of 150,000/- more on equity. The fact remains the respondents have accepted the judgment, decree dated 4.7.2001 dismissing Civil Appeal No. 102- S/13 of 1997 and affirming judgment, decree of the trail Court. There is no merit in the appeal. The substantial questions of law No. 1 and 2 are decided against the appellants. In view of above, appeal fails and is accordingly dismissed with no order as to costs.