Deepak Gupta, J.- This Regular Second Appeal is directed against the JUDGMENT of the learned District Judge, Chamba in Civil Appeal No. 4 of 1998 decided on 29.9.1999 whereby he partly allowed the appeal filed by the appellants (here-in-after referred to as the defendants) and modified the JUDGMENT and decree dated 15.12.1997 passed by the learned Senior Sub Judge, Chamba in Civil Suit No. 572 of 1993.

2. Briefly stated the facts of the case are that respondent Govind Singh (here-in-after referred to as the plaintiff) filed a suit for recovery of Rs. 87,980/- against the defendant Shri Sita Ram. The allegation in the suit was that the plaintiff is owner in possession of land situate in Khata Khatouni No. 260/287 Khasra No. 7131 measuring 404 square yards, in Chamba town and on this land one residential house, court-yard, orchard and agricultural land was existing. The deceased Sita Ram was owner in possession of adjoining land in Khasra Nos. 7127, 7137 and 7136 where he set up a Petrol Pump. The land of the defendant Sita Ram was at a higher level. According to the plaintiff, deceased Sita Ram despite objections by the plaintiff and without any permission constructed a Kucha retaining wall 42 to 45 feet in height and 3 to 4 feet wide on the debris which was left after construction of the Petrol Pump. The plaintiff requested Sita Ram not to construct such a huge retaining wall. In May, 1993 the aforesaid retaining wall developed cracks and the plaintiff requested the defendant to take steps to prevent further damages. Notice was issued also. On 10.7.1993, a major portion of the aforesaid retaining wall gave way and fall on the property of the plaintiff and damaged his store, septic-tank, latrine, kitchen, bath room, electric wiring, water pipeline, etc. The plaintiff filed a suit claiming damages of Rs.87,980/-.

3. The defendant contested the suit. He filed a written statement alleging that he had constructed a proper retaining wall on solid strata. According to him, in July 1993 due to unprecedented rain- fall a portion of the wall gave way. He further submitted that no damage has been caused to the property of the plaintiff. During the pendency of the suit the defendant expired. His legal heirs were brought on record and they contested the suit. The learned Trial Court held that damage to the property of the plaintiff had been caused due to the fact that the retaining wall constructed by the defendant Sita Ram collapsed. He held that it was proved that cracks in wall had appeared in May 1993 prior to the rains. Despite request of the plaintiff defendant Sita Ram had not repaired the cracks and therefore according to the learned Trial Court negligence was of the defendant. He assessed the loss at Rs. 87,980/- and passed a decree for this amount in favour of the plaintiff and against the defendants.

4. The defendants filed an appeal before the learned lower Appellate Court. One of the grounds taken was that since the defendant had expired the cause of action to continue the proceedings did not survive. The learned lower Appellate Court did not accept this contention of the defendants-appellants but reduced the damages from Rs.87,980 to Rs. 43,558/-. The defendants have filed the present appeal. The respondent has filed cross-objection praying that the decree of the trial Court be restored and also praying that he be awarded interest from the date of filing of the suit till payment/deposit of the amount.

5. The appeal was admitted on the following questions of law:-

(1) Whether the learned Courts below have correctly applied the principle of ‘Maxim actio personalis moritur cum persona’?

(2) Whether the learned Courts below are not required to dismiss the suit on the principle of “Damnum fatale”?

(3) Whether the Courts below were right in decreeing the suit of the plaintiff by considering totally inadmissible documents like Ex.PW-8/B and Ext.PW-8/C.?

6. I have heard Shri Anand Sharma, learned counsel for the defendan