The State who suffered a decree for money at the hands of the trial court which was confirmed in appeal has preferred the Second Appeal before this Court. The matter relates to the construction of a water channel. 2. The plaintiffs in the suit have their property on the eastern side of the water channel. According to them, it has a depth of 2.5 metres. When the defendants namely, defendants 3 and 4 undertook the work for construction of retaining wall on the opposite side of the property of the plaintiffs, they cautioned them that when putting up a retaining wall on the western portion of their property, it might cause damage to their property. Further, according to the plaintiffs, the defendants promised to do whatever is necessary and believing the words of the defendants, the plaintiffs remained silent. Further it is alleged that they dumped soil removed from the western side of the thodu in the middle of the channel and the result was that there was unprecedented flooding on the eastern side causing damage to the western bund of the plaint schedule property and also destroying various portions of their property. Alleging that the said damage was caused solely due to the act committed by the defendants which there were already cautioned, suit was laid.
3. The defendants resisted the suit. They denied of taking of soil as alleged by the plaintiffs. In their written statement, they denied all the allegations in the plaint.
4. Issues were raised by the trial court and the parties went to trial. The plaintiffs examined PWs 1 to 3 and had Ext.A1 marked. Exts.C1 and C1(a) are the commission report and sketch. The defendants on their wisdom chose to adduce no evidence.
5. The trial court accepted the evidence adduced by the plaintiffs and found that even though the technical expert who assisted the commissioner has assessed the damage over Rs.60,000/-, since the claim was limited to Rs.56,500/- by the plaintiffs, they are entitled to a decree for that amount. It was categorically found that the damage suffered by the plaintiffs was solely due to the act committed by the defendants. Against the decree so granted, the State went up in appeal. The lower appellate court, on an independent evaluation of the evidence, concurred with the trial court and dismissed the appeal.
6. Learned Government Pleader on behalf of the State contended that the commission report was obtained two years after the incident and that could not have been relied on for the purpose of assessing the damages claimed by the plaintiffs. It is also pointed out that the expert who assisted the commissioner in assessing value was also not examined. According to the learned Government Pleader, the above aspects have been omitted to be noticed by the courts below and that vitiates the decree.
7. It is significant notice that the State did not feel it necessary to file any objection to the commission report. There is nothing to show as on record that either the method adopted or the valuation made by the Commissioner assisted by the expert is erroneous or cannot be accepted. The courts below have also noticed that even though the expert assessed the value of damage at a higher rate, since the plaintiffs had limited their claim, decree was granted only for that amount. The plaintiffs had given evidence regarding the incident.
8. Even though the defendants disputed the allegations, they did not adduce any evidence to show that the claim made by the plaintiffs is false or that the evidence adduced by the plaintiffs cannot be accepted. The evidence adduced by the plaintiff remains unimpeached. The trial court therefore left no choice but to grant a decree.
In the facts and circumstances of the case, this Court finds no ground to interfere with the judgment and decree of the courts below.
This appeal is without merits and it is accordingly dismissed.
Sd/-
P.BHAVADASAN JUDGE smp // True Copy // P.A. to Judge.