The court affirmed that a plaintiff must establish a cause of action and provide evidence of damages; failure to do so results in dismissal of the suit, even if limitation is not raised.

JUDGMENT :

Satyen Vaidya, J.

This Regular Second Appeal has been preferred under Section 100 of the Code of Civil Procedure against the judgment and decree dated 17.04.2017, passed by learned District Judge, Hamirpur in Civil Appeal No.111/2016, whereby the judgment and decree dated 26.10.2016, passed by Civil Judge (Junior Division), Court No. III, Hamirpur in Civil Suit No.61 of2010, has been affirmed.

2. The appellant herein was the plaintiff before the original Court. The parties hereafter shall be referred to by the same status as they held before learned trial Court.

3. The plaintiff filed a suit for damages to the tune of Rs.4,00,000/- against the defendants on the premise that he was owner-in-possession of land comprised in Khata No.52 min, Khatauni No.55 min, Khasra No.97(new) and 77 (old) (for short, “the suit land”). The defendants had utilized some part of the suit land for construction of a public road. According to the plaintiff, the road remained in existence for 28-29 years and thereafter on the objection of the plaintiff, the same was diverted by the defendants through some other land in the village. As per plaintiff, he had sought information under the Right to Information Act in the year 2009 (for short, “the RTI Act”) from the defendants and from the information so supplied to him, he came to know that the road had been diverted by the defendants.

4. In para-4 of the plaint, it was specifically averred that the plaintiff had earlier also filed Civil Suit against the defendants, which was dismissed by learned trial Court. The appeal preferred by the plaintiff against the judgment and decree of dismissal was also dismissed by learned District Judge, Hamirpur, however, with the condition that in case the defendants wanted to widen the road over Khasra No.97, the same would be done in accordance with law.

5. Another plea raised by the plaintiff was that in the previous suit, the defendants had admitted their possession over some part of Khasra No.97. According to the plaintiff, since he had been deprived from the user of substantial portion of suit land for long period of 28-29 years, defendants were liable to compensate him and for such reasons a decree for Rs.4,00,000/-as damages was claimed.

6. The defendants by way of written statement, denied the claim of the plaintiff. They denied to have made any admission in the earlier suit. The filing of suit was objected to on the ground that the same was barred under Order 2 Rule 2 of the Code of Civil Procedure (for short, “the Code”). It was contended that the road i.e. ‘Tikkar to Manoh via Jakhyol’ was constructed in the year 1981 through Khasra No.553-560. No part of Khasra No.97 was utilized or encroached. As per the defendants, Khasra No.97 was recorded as ‘Share-aam Rasta’ in the records of rights and only for such purpose in the previous suit, it was submitted that part of the land in Khasra No.72 was in possession of the HPPWD. Further, the defendants had submitted that ‘Share-aam Rasta’ was in existence even prior to the construction of road.

7. The plaintiff filed replication and reiterated the stand taken in the plaint, after denying the averments made in the written statement.

8. Learned trial Court framed the following issues:

“1. Whether the plaintiff is entitled for recovery of Rs.4,00,000/-, as alleged? OPP.

2. Whether the plaintiff has got no cause of action to file the present suit ? OPD.

3. Whether the suit is not maintainable in its present form? OPD.

4.Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.

5. Relief.”

9. Issues No.1 and 4 were answered in negative, whereas issues No.2 and 3 were answered in affirmative. The suit of the plaintiff was dismissed. The appeal preferred by the plaintiff before learned District Judge, Hamirpur under section 96 of the Code was also dismissed vide impugned judgment dated 17.04.2017, passed in Civil Appeal No.111/2016.

10. Learned trial court has dismissed the suit of the plain