The Secretary PWD to Govt of Hp and Another Vs Shadi Ram Thakur and Another

2026:HHC:26742-DB

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

RSA No. 292/2019 Reserved on: 03.06.2026 Decided on: 02.07.2026

The Secretary, PWD to the Government of Himachal Pradesh & ors. …..Appellants Versus Shadi Ram Thakur & anr. ….Respondents

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Coram:

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The Hon’ble Mr. Justice RomeshVerma, Judge.

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Whether approved for reporting?¹

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For the Appellants: Mr. Diwakar Dev Sharma, Addl. A.G. For the Respondents: Mr. Bimal Gupta, Sr. Advocate with Ms.Kusum Chaudhary, Advocate, for respondent No.1. Mr. Y. P. Sood, Advocate, for respondent No.2.

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Romesh Verma, Judge

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The present regular second appeal arises out of the judgment and decree, dated 27.11.2018, as passed by the learned Additional District Judge-I, Shimla, H.P., whereby the appeal filed by the present appellant/State has been partly accepted and the judgment and decree, dated 07.12.2017, as passed by the learned Senior Civil Judge, Court No.(I), Shimla,

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1Whether reporters of the local papers may be allowed to see the judgment? Yes.

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was modified to the extent that the plaintiff/respondent was held only entitled for recovery of Rs.10,36,500/- along with interest @ 6% per annum from the date of filing of the suit till actual realization on the basis of technical report, Ext. PW1/A. 2 The facts, as emerge in the present case, are that the plaintiff/respondent No.1 filed a suit for recovery and mandatory injunction against the State and Shrey Sood, defendant No.3 before the learned trial Court on 30.11.2009, wherein it was averred that the plaintiff is a permanent resident of village Barmoo, Post Office, A.G Office, Shimla-3, Tehsil and District Shimla, where he is having his landed property alongwith house comprised in Khata No. 32 min, Khatauni No. 59, Khasra Nos. 185, 227, 228, 238, 239, 240, and Khata No. 2, Khatauni No. 2, Khasra Nos. 2, 5, 10/8 to 28/8, 31/8, 35/8, 36/8, 39/8, 40/8, 41/8, 42/8, 43/8 situated at village Jangal Godi Ka Nala and Barmoo, Tehsil and District Shimla, H.P., as per jamabandi for the year 2003-04. It was averred that in the month of December 2006, defendants No.1 to 3 started construction of Longwood-Barmoo Road and they entered in the land of the plaintiff in the month of January 2007. During this period on account of illness of wife of the plaintiff, he remained busy in her treatment as well as he was under great stress and, thus, taking advantage of the

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helplessness of the plaintiff, defendants No.1 and 2 through defendant No. 3, contractor, constructed the road from the land of the plaintiff without his consent and permission.

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3 It was further averred that as per the spot position, an area comprised in Khasra No. 12/8, 13/8 to 22/8, 24/8, and 25/8 situated at Mohal Godi Ka Nala, Pargana Pagogi, Tehsil and District Shimla, and Khasra No, 238/1 situated at Mohal Barmoo, Pargana Pagogi, Tehsil and District Shimla came under the construction and through this land, defendants No.1 and 2 constructed the road without his permission and consent deliberately and forcibly. In the construction of the road, entire land of the plaintiff became unfit for its use and very small portion of land was left out, which is of no use to the plaintiff in future. On coming to know about construction of the road without his consent, he approached the field Kanungo and obtained requisite tatima showing the land through which the road in question has been constructed by defendants illegally and wrongly. On account of the construction of the road, rights of the plaintiff have been prejudiced and he has been deprived of his land without any fault on his part. When the road was constructed, huge quantity of debris was thrown on the left out land of the plaintiff, thereby depriving user of the land of the plaintiff and the debris thrown over the left out land

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of the plaintiff caused great damage to the vegetation as well as trees as existing over the suit land. More than 25 Deodar trees of about 100 years old and 15 apple full grown trees were damaged on account of debris, which was thrown over the land of the plaintiff.

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4 According to the plaintiff, he has got every right to seek relief of mandatory injunction directing the official defendants to either restore the suit land to its original position or the same be acquired and to award compensation for the land which has come under the road as well as left out land which has not remained usable. Therefore, the plaintiff sought a decree for recovery of Rs.14,50,000/- on account of damages to the land and trees as caused to the property of the plaintiff along with interest @ 12 % per annum from the date of institution of the suit till its realization. Further mandatory injunction was sought against the defendants directing defendants No. 1 and 2 to restore the land, pertaining to the plaintiff as entered against Khata No.2, Khatauni No.2, Khasra No. 12/8 to 22/8, 24/8, 25/8, situated at Mohal Godi Ka Nala, Tehsil and District Shimla, and Khasra No. 238/1, situated at Mohal Barmoo, Pargana Pagogi, Tehsil and District Shimla, to its original position and also to acquire the same and pay compensation on account of utilization of the land for the

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construction of the road in question. Further, it was prayed that decree of injunction be passed in favour of the plaintiff and against the defendants directing the defendants to take appropriate measures so that no further damage is caused to the left out property of the plaintiff, situated at Mohal Barmoo, Pargana Pagogi, Tehsil and District Shimla.

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5 Defendants No. 1 and 2 contested the suit by filing written statement, wherein preliminary objections qua maintainability, cause of action, valuation, estoppel, etc. were raised. On merits, it was averred that the road was constructed after taking no objection/affidavit from the land owners whose lands were required for construction of the road in question. The plaintiff gave his consent/affidavit for the construction of the road in question on the area comprised in Khasra No. 12/8, 13/8 to 22/8, 24/8 and 25/8, situated at Mohal Godi Ka nalla and Khasra No. 238/1, situated at Mohal Barmoo. It was averred that the road in question was constructed by the defendants-Department through defendant No.3, Shrey Sood, Contractor, Sterling Castle Longwood, Shimla. Construction of the road in question was completed on 07.07.2008. As far as malwa extracted after cutting is concerned, the Department identified place at R.D.1/630. No debris/malwa was thrown on the land of the plaintiff as the same was dumped on that

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identified site. However, even if any debris/malwa had fallen on the land of the plaintiff, that is not due to negligent act of defendants No. 1 and 2 and this may be due to natural calamity, which may occur anywhere. All the averments, as made in the plaint, were denied and refuted and defendants No. 1 and 2 prayed for dismissal of the suit.

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6 Defendant No.3 filed separate written statement, wherein preliminary objections with respect to locus standi, maintainability, valuation etc. were raised by defendant No.3. On merits, it was averred by defendant No.3 that for the malwa extracted after cutting, the defendant department identified place at R.D. 1/630 and debris/malwa was dumped on that identified site by him. It was reiterated that everything was done in accordance with law and then debris was dumped on the identified dumping site. Averments, as made in the plaint were specifically denied and he prayed for dismissal of the suit.

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7 The plaintiff filed replication(s) to the written statement(s), wherein averments as made in the plaint were reiterated.

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8 The learned trial court on 06.07.2010 and 15.01.2015 framed the following issues:-

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1. Whether the damage has been caused to the land of the plaintiff comprised in Khata No. 32 min, Khatauni No.59, Khasra No.185, 227, 228, 238, 239, 240 and Khata No. 2, Khatauni No. 2, Khasra No. 2, 5, 10/8 to 28/8, 31/8, 35/8, 36/8, 39/8, 40/8, 41/8, 42/8, 43/8, situated at village Jangal Godi Ka Nala and Barmoo and the trees situated in the said land due to cutting and felling of debris in the said land and also due to negligence and carelessness? OPP

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2. If issue No. 1 is proved in affirmative, to what amount of damage the plaintiff is entitled to and from whom?OPP.

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3. Whether the plaintiff is entitled for the grant of mandatory injunction? OPP.

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4. Whether the suit is not maintainable? OPD.

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5. Whether the plaintiff has no cause of action? OPD.

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6. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD.

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7. Whether the plaintiff is estopped from filing the present suit? OPD.

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8. Whether the suit is bad for non-service of notice under Section 80 of the CPC? OPD.

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9. Whether the suit is not within limitation? OPD.

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9-A. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD-3.

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9-B. Whether the plaintiff has not come to the Court with clean hands, if so its effects? OPD-3.

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9-C. Whether the present suit is not maintainable, as alleged? OPD-3.

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9-D. Whether the suit is bad for mis-joinder of parties, as alleged? OPD

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10. Relief.

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9 The learned trial court directed the parties to adduce evidence in support of their contentions to corroborate their respective case and ultimately, the learned trial court vide its judgment and decree dated 07.12.2017 partly decreed the suit in favour of the plaintiff for recovery of Rs.14,50,000/alongwith interest @ 6% per annum from the date of filing of the suit till actual realization of the amount against defendants No. 1 and 2, who were directed to pay the amount to the plaintiff with liberty to recover the same from defendant No. 3. However, suit for mandatory injunction was partly dismissed, directing defendants No. 1 and 2 to acquire the land of the plaintiff through which road was constructed without his consent and without paying any compensation to him. Prayer of the plaintiff to restore the suit land to its original position was declined.

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10 Feeling dissatisfied with the judgment and decree, dated 07.12.2017, defendant No.3, contractor, instituted Civil Appeal No.6-S/13 of 2018, who vide its judgment and decree, dated 27.11.2018, accepted the appeal, as filed by defendant No.3/contractor, holding defendants No. 1 and 2 only to pay amount of damages to the plaintiff.

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11 After passing of the judgment and decree, as passed by the learned trial Court, the State had challenged the same

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by preferring Civil Appeal No.12-S/13 of 2018 under Section 96 of the CPC. The learned first Appellate Court while modifying the judgment and decree as passed by the learned trial Court came to the conclusion that the respondents are entitled for a sum of Rs. 10,36,500/-, instead of Rs. 14,50,000/-, alongwith interest at the rate of 6% per annum from the date of filing of suit till actual realization of the amount on the basis of technical report Ext. PW1/A and the observation of the learned trial court that defendants Nos. 1 and 2 are at liberty to recover the aforesaid amount from defendant No.3 is set aside on the ground that both the parties are governed by award/agreement, which they have mutually executed.

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12 Feeling dissatisfied, the present appellant preferred two regular second appeals before this court bearing RSA Nos. 292/2019 and 306/2019 against the judgments as passed by the learned Courts below.

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13 It would be noticed that RSA No.306/2019 came to be withdrawn by the appellants vide separate order dated 3.6.2026.

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14 The instant regular second appeal came to be admitted by this Court vide order dated 24.06.2019 on following substantial question of law:-

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“Whether the learned first appellate court below has misinterpreted and mis-constructed oral as well as documentary evidence which has materially prejudiced the case of the appellants.”

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15 It is contended by the learned Additional Advocate General, for the appellants/State that the impugned judgments and decrees, as passed by the learned Courts below, are erroneous and liable to be quashed and set aside. He has submitted that the Courts below have not appreciated the point in controversy and have wrongly decreed the suit as filed by the plaintiff. He has urged that road in question was constructed with express consent of the plaintiff/respondent, therefore, no question of payment of damages arose in the instant case. He would submit that after accepting the instant appeal, the suit deserves to be dismissed.

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16 On the other hand, Mr. Bimal Gupta, learned Senior Advocate, assisted by Ms. Kusum Chaudhary, Advocate, appearing for respondent No.1/plaintiff has defended the impugned judgments and decrees. He would submit that there are concurrent findings of fact as rendered by the learned Courts below and thus no interference is required especially in the proceedings under Section 100 of CPC. He has further submitted that the learned Courts below after thrashing oral

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as well as documentary evidence placed on record have rightly decreed the suit of the plaintiff.

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17 I have heard the learned counsel for the parties and have also gone through the material available on record.

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18 The case, as set up by the plaintiff/respondent No.1 before the learned trial court is that he is having landed property alongwith house comprised in Khata No. 32 min, Khatauni No. 59, Khasra Nos. 185, 227, 228, 238, 239, 240, and Khata No. 2, Khatauni No. 2, Khasra Nos. 2, 5, 10/8 to 28/8, 31/8, 35/8, 36/8, 39/8, 40/8, 41/8, 42/8, 43/8 situated at village Jangal Godi Ka Nala and Barmoo, Tehsil and District Shimla, H.P. In the month of December 2006, defendants started construction of Longwood Barmoo Road and they entered in the land of the plaintiff in the month of January 2007 and raised construction of the aforesaid road from the land of the plaintiff without his express consent and permission. Road was constructed by defendants No. 1 and 2 through defendant No.3 without his permission deliberately and forcibly. In the construction of the road entire land of the plaintiff became useless because very small portion of land was left out, which is of no use to the plaintiff in future. Suit land has been utilized by defendants No. 1 and 2 for construction of the road and on account of illegal excavation, debris was

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thrown on the suit land, as a result of which entire area became useless.

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19 It is the case of the plaintiff that on account of throwing of the debris over the suit land, great damage was caused to the vegetation as well as trees as were existing over the suit land. More than 25 Deodar trees of about 100 years old and 15 full grown apple trees were damaged on account of debris which was thrown over the land of the plaintiff. The plaintiff approached the learned trial court with prayer that he has got every right to seek relief of mandatory injunction directing the official defendants to either restore the land to its original position or the same be acquired and to pay amount of compensation for the land, which has come under road as well as left out land, which has become useless. Therefore, the plaintiff sought a decree for recovery of Rs.14,50,000/- on account of damages to the land and trees along with interest @ 12 % per annum from the date of institution of the suit till its realization and mandatory injunction directing defendants No. 1 and 2 to restore the suit land to its original position and also to acquire the same and pay compensation on account of utilization of the land for the construction of the road in question.

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20 Suit of the plaintiff has been contested by the defendants No. 1 and 2 by raising plea that the construction of the road was got done on account of no objection/affidavit as submitted by the land owners including the plaintiff, therefore, he is estopped to raise any kind of claim against the defendants No. 1 and 2. It has been pleaded that the Department had identified place at R.D.1/630 where the alleged malwa/debris was dumped. Therefore, no case is made out in favour of the plaintiff.

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21 As regards defendant No.3, he also took stand that construction of road in question was done as per the procedure and the debris was dumped at the identified dumping site. Therefore, it was pleaded that no question of damage and acquisition arose in the present case.

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22 The plaintiff in order to substantiate his case examined himself as PW3 and deposed in his examination-inchief that in the month of December 2006, his wife was not well and on account of her illness, he was busy in hospital. Defendants No. 1 and 2 in connivance with defendant No.3 raised construction of the road from the land, situated at Godi Ka Nala and Barmoo. Construction of the road known as Longwood-Barmoo commenced in December 2006 for about 5-7 days with the help of machinery. Road was constructed from

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the land to the extent of 5-6 bighas, situated at Godi Ka Nala and three curves were constructed by the Department. While carrying out construction of the road, debris and big boulders were thrown on the suit land, as a result whereof, entire suit land became useless. He further deposed that there were about 20-25 Deodar trees existing over the suit land, which were about more than 100 years old. About 10-15 apples trees standing over the suit land also got damaged on account of throwing of debris. Value of deodar tree is about Rs.15,000/per tree and that of apple trees is Rs. 10,000/- per tree. He got prepared tatima of the road constructed over the suit land, Ext. PW2/A and Ext. PW2/B from the Patwari. He stated that he got prepared valuation report through the private valuator. After causing damage to the left out area of the plaintiff, no preventive measures were taken by the department, as a result of which, left out area slid down and got damaged. He further deposed that he issued notice, Ext. PW3/A, receipts whereof are Ext. PW3/B and Ext. PW3/C. He stated that photographs of the spot are Ext. PW1/B-1 to Ext. PW1/B-19 and its negatives are Ext. PW1/B-20 to Ext.PW1-B-38. He stated that on account of debris thrown on the suit land by the department, no cultivation is possible over the suit land. He was not

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compensated on account of construction of the road through the suit land.

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23 In his cross-examination, he admitted that the road in question was constructed in December 2006. He denied that the road was constructed on the popular demand of the public including the plaintiff. Self stated that he was apprised that about 4-6 biswas of the land shall be utilized by the Department. He admitted that an affidavit, dated 24.2.2006 was prepared to this effect. Self stated that columns in the affidavit were empty. He admitted that some columns of affidavit, Mark X, are typed and certain portion is empty. He admitted that he was identified by one Niranjan Verma and his attendance was attested by the Notary. He admitted that he has movable and immovable property. He denied that the road was completed in all respects in the year 2008. He admitted that affidavit, Mark X was prepared in February 2006, whereas construction work of the road was started in December 2006. He denied that he was having the knowledge that the road had to be constructed through his entire land. He stated that while preparing affidavit, Mark X, Khasra Nos. 12/8, 13/8 to 22/8, 24/8, 25/8 and 238/1 did not exist. He denied the suggestion that debris was thrown by the contractor at the identified/dumping site. He denied that on account of

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throwing debris, no damage was caused to any land. He admitted that technical report, Ext.PW1/A was prepared by J. K. Mahindrooo at his instance. He denied that at time of preparation of report, all the relevant documents were not shown to the expert. He admitted that he does not know that photographs, Ext. PW1/B-1 to Ext. PW1/B-19 pertain to which Khasra number.

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24 In order to corroborate the case of the plaintiff, J. K. Mahindroo appeared in the witness box as PW1 and deposed that he retired as Executive Engineer from the department of Irrigation Public Health. After his retirement, he is carrying out the business of consultancy. On 8.6.2009 at the instance of the plaintiff he inspected the land owned and possessed by the plaintiff. The plaintiff got his land inspected and assessed to the extent of debris thrown on his land due to the construction of the road by the HPPWD. He stated that after the spot inspection, he prepared his report Ext.PW1/A, which is true and correct to the factual position. As per estimate prepared by him, an amount of Rs.10,36,500/- was required for the removal and clearance of the debris on the land of the plaintiff. The said cost of removal of debris was worked out by him as per the HP Schedule of rates of the year 1999 by keeping in view the cost Index till 1.4.2009. He had taken photographs of the spot, Ext.

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PW1/B-1 to B-19 which reveals factual position of land of the plaintiff.

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25 In his cross-examination, he stated that no objection certificate was required to be obtained for the construction of the road if the land was not acquired from the concerned land owner. As per the procedure, no debris could be thrown on the land of any landowner. The debris had been thrown in the land of the plaintiff without taking any requisite care. As per the statement made by the plaintiff that the land belongs to him, he believed him that the land was owned by him. He denied that revenue papers were not shown to him. Self stated that the revenue papers were shown to him, but he had not got the land identified from the revenue department. He stated that when he inspected the spot, the construction of the road was already complete.

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26 PW2 Jaipal Chauhan, deposed that in the year 2003, he was working as Patwari, at Patwar Circle Kelti. He stated that on the orders of the Collector, he inspected/demarcated the land of the plaintiff and prepared spot tatimas, Ext. PW2/A and Ext. PW2/B, which are correct as per the spot position. He stated that road has been indicated in rek ink in Ext. PW2/A and Ext. PW2/B.

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27 In his cross-examination, he stated that he did not call the defendants while preparing tatimas Ext. PW2/A and Ext. PW2/B. He stated that while preparing the tatimas, he was possessing jamabandi, latha and other record. He denied the suggestion that he did not visit the spot and the tatima was prepared without inspecting the spot.

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28 PW4 Chander Verma deposed that he has seen land

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of the plaintiff as he resides in the same area. In January 2007, Longwood-Barmu road was constructed through the land being owned by the plaintiff. Land of the plaintiff was utilized by raising construction of two curves of the road and entire debris was thrown on the left out area of the plaintiff. On account of throwing of debris, no cultivation is possible over the same. In his cross-examination, he stated that he does not know that the road was constructed on the demand of the general public. He admitted that on account of construction of the road, now it is convenient for him to reach to his house.

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29 In order to rebut evidence as led by the plaintiff, defendants No. 1 and 2 examined R. L. Shrama, as DW1, who tendered in evidence his affidavit, Ext. DW1/A. He stated that he remained posed at J.E. with HPPWD, Division No. 1 (Sub Division No.1 at Winter Field). During the construction of road work known as Longwood Barmu Road 0/0 to 3/190, he

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remained posted as JE and the said construction was done under his supervision including other senior officers of the Department. He stated that before executing the said construction work, the affidavits from the concerned land owners were obtained and NOC to this effect was also obtained. The copy of affidavit executed by the plaintiff has already been tagged with written statement filed on behalf of Department. He stated that the construction work of said road was executed during December, 2006 and was completed on 07.07.2008. He deposed that before executing the construction work, the alignment demarked by the Department on spot was duly shown to the plaintiff at the time of conducting survey and also at the time of taking affidavit from him. He stated that at time of construction of road, debris was thrown at the identified dumping site. No debris/boulders etc. were thrown over the suit land while raising construction of the road. In case the debris had been thrown over the suit land, liability to remove the same as per clause 7 of the agreement was of the contractor. Since the construction work was completed during the year 2008, neither any objection to this effect was raised by the plaintiff till the filing of above suit nor any representation to this effect was ever made by him to the Department. He stated that no damage as alleged was ever caused to the land of

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plaintiff during the construction work of said road. He stated that the suit is barred by limitation.

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30 In cross-examination, he stated that debris while constructing road was thrown on R.D. 1/630 in the supervision of the Department. He stated that no loss was caused to tress at the time of construction of the road. He stated that he retired in July 2015. He admitted that while deposing so, he did not have any authorization from the State. However, he stated that on behalf of his senior officers of the Department, he had been authorized to make statement. He admitted that Executive Engineer had not executed any power of attorney in his favour. Self stated that authority letter has been issued. He stated that he does not know of which landowners the land was utilized for the construction of the road. He stated that he does not know when the demarcation, Mark X, was carried out on the spot. He stated that there is cutting over name of the deponent in mark X. He stated that he does not know that while preparing mark X, said Khasra numbers existed over the spot. He admitted that while raising construction of the road, land of the plaintiff became useless. He admitted that he has not brought any document qua intimation of dumping site, however the contractor was told to do the needful on the spot. He stated that he does not know about Khasra numbers, over

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which dumping site was situated. He admitted that in photographs, Ext. PW1/B-1 to Ext. PW1/B-5, debris is being shown. He admitted that while raising cutting over the suit land, no retaining wall was raised by the department. As per records, road was completed on 07.07.2008.

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31 Defendant No.3/contractor, Shrey Sood, appeared in the witness box as DW2 and reiterated averments as made in the written statement, as filed by him. He stated that the debris was thrown on the identified dumping site and the said site was situated at 100-150 mts away from the LongwoodBarmoo road. He stated that dumping site was identified by HPPWD. While raising construction of road, no damage of any was caused to any landowner. He stated that the plaintiff has filed false suit against the defendants.

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32 In his cross-examination, he admitted that road was constructed in 2008. He admitted that he has not placed on record any award and agreement in order to substantiate his version. He stated that he does not know how much land of the landowners was utilized. He stated that the agreement, which was entered between him and and the official defendants, there was no dumping site in the same. He stated that he had not received any document from the department, which may show that the dumping site was identified for the disposal of the

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debris. He stated that dumping site was identified by the J.E. He stated that before starting construction work, dumping site was identified by the Department. He stated that the road which was constructed by him, there were about 4-5 curves in the same. He denied that while raising construction of the road, debris was thrown on the suit land and he is deposing in league with the official defendants.

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33 The plaintiff has placed on record, copy of technical report, as prepared by PW1 J. K. Mahindroo. As per report of the technical expert, Ext. PW1/A, after calculating the measure required for removing debris from various Khasra numbers of the lands and protecting the house known as Devki Bhawan, a sum of Rs.10,36,500/(Rs.5,78,000/+ 2,89,000/+ 1,44,500/- + 25000/-) was required towards damages to the property of the plaintiff besides the value of trees that have been damaged by the debris and value of plaintiff’s land lost in the construction of the road.

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34 PW1 while appearing as witness in the witness box has categorically stated that as per estimate prepared by him, an amount of Rs.10,36,500/- was required for the removal and clearance of the debris on the land of the plaintiff. The said cost of removal of debris was worked out by him as per the HP

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Schedule of rates of the year 1999 by keeping in view the cost Index till 1.4.2009.

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35 In order to rebut the said report, neither the defendants have examined any expert nor placed on record any official document, which may contradict or falsify claim of the plaintiff. In the absence of any document or material placed on record by the defendants/State, the learned Courts below have rightly placed reliance upon Ext. PW1/A. Notably, in the case at hand, the defendants could have placed on record any documentary evidence in order to counter technical report, Ext. PW1/A, prepared by PW1, but surprisingly, no steps have been taken by the defendants/State to the reasons best known to them. Report, Ext. PW1/A, has been duly proved on record by PW1.

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36 Another important aspect of the matter is that the defendants examined retired official of HPPWD, namely R. L. Sharma, as DW1 in order to rebut the case of the plaintiff. A person, who is retired official has been examined, who in his statement has admitted that there is no authority letter on behalf of the State to make deposition. He admitted that Executive Engineer had not issued any power of attorney in his favour. The deposition of DW1 reveals that he does not know the number of landowners whose land was utilized by the State

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for the construction of the road in question. This witness does not have the knowledge of Khasra number, over which dumping site was alleged to have been identified. He admitted that while raising construction no retaining wall was constructed by the department in order to protect the suit land.

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37 In the present case, neither the contractor nor the official defendants have placed on record any document showing exact dumping site. The pleadings along with evidence as recorded by the plaintiff prove the case that the debris was thrown on his land and on account of the same damage was caused to his property. 38 Learned Additional Advocate General has heavily relied upon alleged NOC/affidavit of the plaintiff/landowner, Mark X to resist the claim of the plaintiff. It is the case of the defendants that the road was constructed with express consent of the plaintiff along with other co-villagers. Perusal of the affidavit, Mark X, shows that there are cutting and interpolations in the first line of the same. Name of the father of the plaintiff has been tampered with and he has been shown to be son of Janku Ram Thakur after cutting name of Kanshi Ram. In mark X, though Khasra numbers have been incorporated, but the column pertaining to Khata/Khatauni is blank. In para 3 of Mark X, Khasra numbers are blank, which

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creates doubt about the authenticity and veracity of the same.

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39 As rightly pointed out by the learned senior counsel for the plaintiff that cross-examination of the plaintiff establishes that the plaintiff had signed the document on 24.2.2006 for using 4-6 biswas of land and not entire land as mentioned in Mark X. Cross-examination of the plaintiff further reveals that Khasra numbers, as mentioned in Mark X, were not in existence on the spot when the said document was executed and notarized. Khasra numbers, as mentioned in para 1 of Mark X, came into existence on the basis of mutation pertaining to family partition, having been attested and accepted by the authority on 18.09.2006 after about 7 months of the execution of the Mark X.

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40 Most shocking part of the affidavit is that at page 3 of the same, it has been verified on 24.2.2006, however said document has been notarized on 21.2.2006. This anomaly shatters the case of the defendants and it can be safely held that this document is false and fabricated document.

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41 Entire evidence of the defendants is based on document, Mark X. However in the absence of any proof, since document Mark X has not been proved in accordance with law, no reliance can be placed on the same. It has been admitted by DW1 that dumping site is to be identified in

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consultation with the Collector and local Panchayat, however there is no such document on record.

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42 The factual matrix of the case reveals that the land of the plaintiff was utilized by the official defendants/appellants for the construction of the road without due process of law. Neither the suit land was acquired nor any compensation was paid to the plaintiff.

¶112

43 The Hon’ble Supreme Court in its various decision has held that no person can be deprived of his property without following due process of law.

¶113

44 Once, it has been established and proved on record that for the construction of the road, suit land was utilized and debris and big boulders were thrown on the left out land of the plaintiff, in that event, the plaintiff is entitled for damages and compensation from the department.

¶114

45 Learned first appellate court has rightly modified the judgment, as passed by the learned trial court, by holding defendants No. 1 and 2 only to pay amount of damages and plaintiff to be only entitled for recovery of Rs.10,36,500/along with interest @ 6% per annum from the date of filing the suit till actual realization on the basis of technical report, Ext.PW1/A.

¶115

27

¶116

46 The plaintiff has been able to establish that on account of construction of the road, land owned by him was utilized and during this process, debris along with big boulders were thrown on the suit land and the land became unfit for its use. As noticed above, PW1 J. K. Mahindroo has calculated the damage and the learned courts below have rightly relied upon the same.

¶117

47 The Hon’ble Supreme Court in catena of judgments has held that the first appellate is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interfere with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand.

¶118

48 The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under:

¶119

18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under

¶120

28

¶121

Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that :

¶122

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those

¶123

29

¶124

principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

¶125

20. to 22 xx xxxxxx

¶126

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision

¶127

30

¶128

of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”

¶129

49 The Hon’ble Supreme Court in Annamalai vs.

¶130

Vasanthi, 2025 INSC 1267 , has held as follows:-

¶131

“16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here.

¶132

17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank

¶133

31

¶134

paper. The reasoning of the first appellate court in paragraph 29 of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A-2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there existed no occasion for the High Court, exercising power under Section 100 CPC, to interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction.

¶135

18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, because an opinion regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the

¶136

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¶137

entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfil his obligation and accept performance when the time for performance arrives.”

¶138

50 As observed above, the Hon’ble Apex Court has repeatedly held that the scope of interference under Section 100 CPC is limited and the interference will be in those cases where the judgments are perverse and based on no evidence.

¶139

51 On perusal of the impugned judgment as passed by the learned Additional District Judge (1), Shimla, dated 27.11.2018, this Court is of the opinion that the same is legal, valid and sustainable in the eyes of law and there is no infirmity, illegality in the same and no interference of any kind is required and the same is upheld. The substantial question of law is answered accordingly.

¶140

52 In view of aforesaid discussions and for the reasons stated hereinabove, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.

The Secretary PWD to Govt of Hp and Another v. Shadi Ram Thakur and Another

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The Secretary PWD to Govt of Hp and Another v. Shadi Ram Thakur and Another

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