The burden to prove negligence and causation in tort claims rests with the plaintiffs, which they failed to establish.

JUDGMENT

By way of instant appeal, appellants have assailed judgment and decree dated 14.8.2008, passed by learned District Judge, Mandi, Himachal Pradesh, in Civil Suit No. 12 of 2005, whereby the suit of the appellantshas been dismissed.

2. Parties herein are referred by the same status, as they held before the learned trial Court. The appellants were plaintiffs and the respondents were the defendants.

3. Plaintiffs filed suit for recovery of Rs. 10,00,000/- ascompensation on account of damage caused to their house, comprised inland bearing khata No. 178 min., khatauni No. 219 min, Khasra No. 1263/245, measuring 1-11-13 bighas, situated at mauja Nagwain, Tehsil Sadar, District Mandi, H.P. (Hereinafter referred to as suit property).As per averments made in the plaint, defendants were owners of land comprised in khata No. 227, khatauni No. 273, Khasra No. 1278/243, measuring 1-16-15 bighas in the same revenue village. In fact, the suit property and land of defendants were contiguous, having common boundary.

4. Plaintiffs averred in the plaint that in 2004 defendantsstarted unscientific digging of a water-wellin Khasra No. 1278/243, which started causing damage to their house.As per plaintiffs, the well was being dug at a distance of 14-15 feet from their house, whereas the defendants had sufficient land for the purpose. The land strata was stated to be sand mixture and black clay.It was alleged the digging work of defendants disturbed the land towards their house and caused its sinking. Plaintiffs filed Civil Suit 48/2004 against defendants for permanent prohibitory injunction. Despite grant of interim injunction in favour of plaintiffs, defendants continued to dig the well, which aggravated the damage to the house of plaintiffs. It developed cracks and became inhabitable. Though, the damage caused to the house of plaintiffs was estimated at Rs. 17,50,000/- but the plaintiffs filed a suit for recovery of Rs. 10,00,000/- only by restricting their claim.

5. Defendants contested the suit. It was submitted that the house of the plaintiffs was constructed with stones and mud mortar masonry. There was no damage to the house of plaintiffs due to digging ofwell by defendants. The well was stated to have been dug in scientific manner by placing RCC rings inside the well. It was specifically averred that the house of the plaintiffs was not constructed with proper specifications. The cracks in the house of plaintiffs had developed prior to the digging of well by the defendants. The plaintiffs were further accused of having no proper drainage to their house. It was also submitted that the well of defendants was far away from the house of plaintiffs. In entire village Nagwain, most of the people had constructed their own water wells.

6. On the basis of pleadings of the parties, following issues were framed: -

1. Whether the plaintiffs are entitled for recovery of damages for the amount of Rs. 10,00,000/-, as alleged? OPP.

2. Whether the suit is not legally maintainable? OPD.

3. Whether the plaintiffs have no cause of action to file the suit? OPD.

4. Whether the suit is not maintainable under Order 2 Rule 2 CPC and suit is liable to be stayed under Section 10 CPC.

5. Relief.

7. Plaintiffs examined nine witnesses, whereas defendants examined five witnesses. A number of documents also were proved by either side as per their respective cases. On conclusion of trial, learned trial Court decided issue No.1 in negative. Issues No. 2 and 3 were decided in affirmative and issue No.4 was decided partly in affirmative. Suit of the plaintiffs was accordingly dismissed.

8.