1.0. Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants-original defendants to quash and set aside the impugned judgment and order passed by the learned Appellate Court -learned Additional District Judge, Jamnagar dated 7.1.2008 passed in Regular Civil Appeal No.170 of 2005 by which the learned Appellate Court allowed the said appeal preferred by the respondent herein-original plaintiff and enhance the amount of damage/ compensation to Rs.1 lacs by directing the appellants-herein original defendants to pay Rs.1 lacs with running interest at the rate of 12% p.a. from the date of filing of the suit till realization to the plaintiff towards the damages caused to the suit land.
2.0. That the respondent herein-original plaintiff instituted Special Civil Suit No.120 of 1990 in the Court of learned Civil Judge (S.D.), Jamnagar against the appellants - herein original defendants for recovery of Rs. 1 lacs as compensation for the damages caused to the land by the defendants. It was the case on behalf of the plaintiff that he is the owner and in possession of certain agriculture land at Village Suvarda and in October 198, the defendants were carrying out firing exercise from the Campus and during the course of such exercise the defendants unlawfully, without giving any due notice, entered into the suit land and dug out pits and trenches and built up huge heaps of earth on the suit land and caused damages to the suit land to such an extent that the land became totally useless for cultivation purpose and therefore, original plaintiff prayed Rs.1 lacs towards damages caused to the land.
2.1. The suit was resisted by the appellants-original defendants by filing written statement at Exh.7. That the learned trial Court framed the issue at Exh.10. That the plaintiff examined himself and her other witnesses. The plaintiff produced documentary evidence at Exhs. 25 to 28, 13 and 33, more particularly, the panchnama prepared by the Talati cum Mantri on behalf of defendants, Rajesinh Ratansinh was examined at Exh.42. That on appreciation of evidence the learned trial Court held that the plaintiff has proved that the officers of the original defendant no.2 entered into the suit land of the plaintiff and done severe damages by making pits and as a result of the same, the suit land become non use and thus the plaintiff sustained damages. That on appreciation of evidence the learned trial Court determined the damages at Rs. 10,000/- and consequently by judgment and decree dated 23.12.1996 partly allowed the suit directing the defendants to pay Rs.12,000/- with 12% running interest from the date of filing of the suit till realization to the plaintiff.
2.2. Being aggrieved and dissatisfied with the judgment decree passed by the learned trial Court dated 23.12.1996 passed in Special Civil Suit No. 120 of 1990 in awarding damages of Rs.10,000/- only, the respondent herein -original plaintiff preferred First Appeal No. 2230 of 1997 before this Court, however in view of the amendment in the Rules the said appeal came to be transferred to the District Court, Jamnagar, which came to be registered as Regular Civil Appeal No.170 of 2005 and the learned Additional District Judge, Jamnagar by impugned judgment and order dated 7.1.2008 has allowed the said appeal by enhancing the amount of damages to Rs. 1 lacs from Rs.10,000/- awarded by the learned trial Court.
2.3. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Additional District Judge, Jamnagar dated 7.1.2008 passed in Regular Civil Appeal No.170 of 2005, the appellants herein-original defendants have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3.0. Shri Satyam Chhaya, learned Central Government Standing Counsel for the appellants-original defendants has vehemently submitted that the learned Appellate Court has materially erred in allowing the appeal preferred by the respondent herein-original plaintiff and in awarding the damages of Rs.1 lacs. It is submitted that in absence of any evidence led by the plaintiff that the damage has been caused to the extent of Rs. 1 lacs, the learned Appellate Court has materially erred in awarding damages of Rs. 1 lacs. It is submitted that the learned Appellate Court has materially erred in awarding Rs. 1 lacs as damages solely relying upon the panchnama signed by the Talati cum Mantri. It is further submitted that even it has come on record that even in the very next year, the plaintiff cultivated the crops of groundnut and Juvar etc and therefore, the contention on behalf of the original plaintiff that due to the damages caused to the land the same was not in use for number of years cannot be accepted. Therefore, it is requested to allow the present Second Appeal.
4.0. Present Appeal is opposed by Shri Manoj Popat, learned advocate for the original plaintiff. It is submitted that as such the panchnama was signed by the Talati cum Mantri in which it has been specifically mentioned that the damage was to the extent of Rs.1 lacs and therefore, the learned Appellate Court has not committed any error and / or illegality in relying upon the panchnama and in awarding Rs. 1 lacs by way of damages. It is submitted that the damages caused to the land has been proved and there are concurrent findings of fact given by both the Courts below. It is submitted that looking to the conduct on the part of the defendant and the military personal entering the land of the plaintiff illegally and digging pits making the land useless, therefore, it is requested to the dismiss the present Second Appeal.
5.0. Heard the learned advocates for the respective parties at length and while admitting the present Second Appeal learned Single Judge framed the following substantial question of law for consideration in the present Second Appeal.
"Whether, in the facts and circumstances of the case, the lower appellate Court is justified in enhancing the compensation from Rs.10,000/- to Rs. 1,00,000/- in absence of any evidence on record ?
5.1. Having heard the learned advocates for the respective parties and considering the impugned judgment and order passed by both the Courts below, more particularly, the judgment and order passed by the learned Appellate Court enhancing the amount of damages to Rs.1 lacs and considering the evidence on record, it appears that the learned Appellate Court has solely relied upon the panchnama signed by the Talati cum Mantri while awarding Rs. 1 lacs towards damages. It appears that in the panchnama it has been mentioned that the damages has been caused to the extent of Rs.1 lacs and therefore, relying upon the said panchnama the learned Appellate has awarded damages of Rs. 1 lacs. It is required to be noted that as such no other evidence has been led by the plaintiff to prove actual damages caused that too to the extent of Rs. 1 lacs as claimed. Under the circumstances, in absence of any other evidence and solely relying upon the panchnama mentioning that the damage has been caused to the extent of Rs. 1 lacs, the learned Appellate Court has materially erred in awarding Rs. 1 lacs towards damages. It appears that it was the case on behalf of the plaintiff that because of digging pits and trenches the land lost its fertility and land was not cultivable for number of years. However, from the evidence on record and form no.7/12 etc., it appears that in the very next year the plaintiff had cultivated the land and grown the crop of groundnut and Juvar etc. Therefore, the contention on behalf of the plaintiff that there was a damage to the land and it had lost its fertility and / or the same was not capable of being used cannot be accepted. In any case, in absence of any evidence led by the plaintiff to prove the actual damage caused to the land and solely relying upon the panchnama at Exh.33 prepared by the Talati cum Mantri the learned Appellate Court has materially erred in enhancing the damages to Rs. 1 lacs. Under the circumstance, the impugned judgment and order passed by the learned Appellate Court cannot be sustained and same deserves to be quashed and set aside.
6.0. In view of the above and for the reasons stated above, present appeal succeeds and the impugned judgment and order passed by the learned Appellate Court -learned Additional District Judge, Jamnagar dated 7.1.2008 passed in Regular Civil Appeal No.170 of 2005 is hereby quashed and set aside and the judgment and decree passed by the learned trial Court dated 23.12.1996 is hereby restored. Present appeal is allowed to the aforesaid extent. No costs.
( M. R. Shah, J. ) "kaushik"
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