GIAN SINGH Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS judgment shall dispose of an appeal filed by the Appellant against the judgment and decree of the Court of Learned District Judge, Shimla, dated 12.1.2001, vide which he had partly allowed the appeal filed by the Respondents against the judgment and decree of the Court of Learned Sub Judge 1st Class, Theog, dated 25.9.1997, vide which the suit for mandatory injunction was decreed in favour of the Appellant for the recovery of Rs. 1,03,740/ - alongwith interest. By his impugned judgment and decree dated 12.1.2001, the Learned Appellate Court had allowed the relief of Rs. 36,600/ - only in favour of the Appellant and as against the Respondents, against what was allowed by the Learned trial Court. This judgment shall also dispose of an appeal filed by the Respondents against the judgment and decree of the Court of Learned District Judge.

(2.) BRIEFLY stated, the facts of the case are that the Appellant hereinafter also referred to as the Plaintiff filed a suit for mandatory injunction and for recovery of Rs. 79,800/ - as damages as against the Respondents hereinafter also referred to as the Defendants. It was alleged by the Plaintiff that he is owner of two water flour mills installed in one building (gharat) situated on land measuring one biswa bearing Khasra No. 13 in Chak Mohari. The gharat used to be run by water of Matiana - Mahori Khad. A mallawan was errected on Matiana -Mahori Khad and the water was taken through a pucca channel from the Mallawan upto the gharats and then the water was taken to each water flour mill separately through wooden/deodar Nallas and thus both the water flour mills used to run simultaneously throughout the year. The Plaintiff was having good return from the gharat. In the end of 1986, the Defendants started construction of Matiana -Mahori road, which passes above the gharat, water Kuhal and Mallawan of the Plaintiff. At the time of construction of Matiana -Mahori road, big boulders and debris were thrown below the road as a result of which the gharat, its two Nallas, water Kuhal and Mallawan were damaged and the water Kuhal was burried under the debris. Thus the gharat stopped working since the month of January, 1987.

(3.) THE Defendants took up various preliminary objections with regard to estoppel, cause of action and non -issuance of legal notice etc. On merits, the Defendants pleaded that the gharat was old and damaged and abandoned. It was not in working condition at the time of construction of the road. There was No. sign of pucca channel in the shape of Kuhal. However, the officials gave assurance to the Plaintiff that in case Katcha dry channel is damaged by the widening work of the road, the debris would be cleared by the department by deploying labourers. All due precautions were taken by the Defendants and some debris had already been removed from the gharat. It was denied that any damage was caused to the Mallawan, water Kuhal, deodar Nallas etc.