JUDGEMENT :

A Civil Suit bearing No. 28 of 2009 became instituted by the plaintiffs before this Court. In the Civil Suit supra, the plaintiffs claimed the renditions of the hereinafter extracted relief(s), vis-a-vis, them, and, against the defendants:-

“i. that the plaintiffs prays for a decree for Rs.27,00,000/- on account of damages suffered by the plaintiff with respect to their property alongwith interest @18% per annum from the date the amount fell due to the plaintiffs along with the costs of the suit against the defendants.

ii a decree for permanent prohibitory injunction restraining the defendants from causing any damages to the property of the plaintiffs in Khewat No.4, min, Khataoni No.7 min, khasra Nos. 581, 582, 584 and 659 kita 4 in all measuring 0-81-96 hectares and kahsra No.583 situated at Village Bagri, Mauja Vasa Vagan Pargana Ghand, Tehsil Theog.

Iii. A decree for mandatory injunction thereby directing the defendants to provide retaining wall in all length to the property of the plaintiff in Khewat No.4 min, Khatoni No.7 min, khasra Nos. 581, 582, 584 and 659 kita 4 in all meausring 0-81-96 hectares and kahsra No.583 situated at Village Bagri, Mauja Vasa Vagan Pargana Ghand, Tehsil Theog, District Shimla, H.P.”

2. The afore espoused decrees were averred to be a sequel of the defendants, during the course of construction of link road, nomenclatured as Chaila-Huli-Jawal-Sawal-Devighat to Ulvi, hence in year 2007, taking to make excavations beyond permissible 12 feet, given the plaintiffs donating their land to the defendants, for the construction of the afore road, only if, the executing agency utilizes their land only to the extent of 12 feet width. Therefore, the plaintiffs aver that since beyond the afore permissible width of 12 feet, the executing agency, during the course of undertaking construction, of the road supra, making diggings, and, excavations of their land, thereupon, their being consequential damage to the plaintiffs' land, arising from heavy rains causing further slippages, and, land slides, especially vis-avis, the land occurring above the road supra. Furthermore, it has also been averred in the plaint, that in sequel to the afore undertaking of construction activity, by the agency concerned, and, owing to continuous rains, the land, orchard, kitchen and temple of the plaintiffs, hence coming under imminent threat, and, also the afore premises developing cracks. Therefore, the plaintiffs, aver that there is a completest nexus inter se the afore forbidden constructing activity as undertaken by the executing agency concerned, and, the damage as caused to the land, and, premises of the plaintiffs.

3. The defendants, through, theirs instituting written statement to the plaint, completely denied, that the afore misfeasance, and, non-feasance being attribuntable either to them or to the contractor concerned. Contrarily, they contended, that the plaintiffs had consented for the construction of the afore road through their land. Moreover, the defendants also contended in their written statement that the damage, if any, as has occurred to the plaintiffs' land, hence adjoining to the land over which road (supra) was constructed, rather being a sequel of heavy rain fall. Consequently, the defendants, in their written statements hence contended that the suit is barred, on the anvil of principle of remoteness of damages, inasmuch as the damages averred in the plaint, being not connected with the construction activity hence under taken by the executing agency concerned.

4. This Court, upon, the afore pleadings, had proceeded to, on 31.12.2009, strike the following issues:-

1. Whether the plaintiffs are entitled for permanent prohibitory injunction, as prayed for? OPP

2. Whether the plaintiffs are entitled for the relief of mandatory injunction for being provided with the retaining wall for the portion of road passing from their properties as detailed in the plaint? OPP.

3. Whether the defendants have caused damag