S.K. Ghose, J.
1. This appeal arises out of a suit brought by the plaintiff against the Darjeeling Himalayan Railway Company as the defendant 1 on the following allegations. The plaintiff is the owner of certain house properties in Darjeeling situated above the cart road and comprising what is called the Wilk's Hall Estate which includes Margaret Villa. The latter property stands on grounds at a distance of 453 feet above the railway lines which are on the cart road. Previous to the 8th August 1927, in spite of repeated protests and verbal notice, the defendant Railway Company wrongfully, negligently and in utter disregard of the natural safety and the acquired right of support in respect of the aforesaid Margaret Villa and its adjoining grounds, regularly and persistently carried on deep cutting on the steep hillside for days together, till the boulders above were disturbed and lost their support and an artifical land--slip was caused on the aforesaid date with considerable damage, actual separation and subsidence of the forest lands, forming part of the said premises of the plaintiff and covering approximately an area of 40,000 square feet. This is para. 3 of the plaint. The plaintiff further alleged that his property had become unsafe and further land--slip was imminently expected. In consequence of this he brought the suit claiming damages against the defendant company for a sum of USection 50,000 and certain other reliefs. The defendant company in their written statement denied the allegations against them and asserted that owing to natural causes the defendant company apprehended danger to their lines shortly before the land--slip occurred, and that they in the exercise of due diligence in order to avoid the danger took steps as far as lay in their power. They also denied that there were any protests made or notice given as alleged by the plaintiff. On the contrary the defendant company has suffered a heavy loss as the result of the land--slip. The Secretary of State for India in Council was added as defendant 2 and his written statement is on the same lines. Various issues were framed and of these issues 3, 4 and 5 are material to this appeal.
Issue 3: Did the defendant carry on any deep cutting negligently and in utter disregard of natural safety and the right of support and did the same cause the slip; and if so, are the defendants liable in any way. And what was the area of the slip? Issue 4: Has the land--slip affected the safety of the buildings 'Margaret Villa' and lands adjoining the site? Has there been any damage at all? And if so to the extent of Rs. 50,000 or any sum? Are the defendants liable therefor? Issue 5: Has the plaintiff any cause of action for this suit even if there was any damage at all against the defendant company
2. At the trial the case made for the plaintiff was that the cutting of the hillside by the Railway Company was started from the beginning of July 1927, whereas the defendants asserted that nothing was done until the 25th July 1927. On this point the learned Subordinate Judge found in favour of the defendants. He also found that the Railway Company had exercised great care at every step and that there were no protests of any kind on the part of the plaintiff. Then, as regards the cause of the disaster, the learned Subordinate Judge found that it was due to natural causes and not due to any action on the part of the Railway Company, but that it took place inspite of all precautions which could possibly be taken and were actually taken by the Railway Company. As regards the actual damage, the learned Judge found that no damage whatever was caused to the property of the plaintiff, except such as have been compensated for under the Land Acquisition Act. In the result the learned Subordinate Judge dismissed the suit. Hence this appeal.
3. It is admitted or taken as proved that the land--slip occurred on 8th August 1927 at about 10 p.m. between bridges 511 and 512 of the railway line on the cart road, the distance between these two points being 350 feet. Just above the cart road there is a strip of land called 'Cart Road Reserve land which is the property of the Railway Company. Above this is the land of the plaintiff. According to the map Ex. 2 prepared by the plaintiff the top of the land slip is about 169 feet above the railway lines. It went down to some distance below the cart road, but the evidence on this point is not definite. The area of the plaintiff's land affected by the slip is about 70 poles. The whole of this area together with 76 poles of unslipped land has been acquired by the Government since the occurrence and compensation amounting to Rs. 342-3-8 has been paid to the plaintiff.
4. The question raised in this appeal is comprised in issue 3 above quoted and the decision of the appeal turns upon a question of fact, namely whether the plaintiff has been able to prove that the slip was caused by the cutting of the hillside on the part of the Railway Company. As mentioned already, the Company admit that they started working from 25th July whereas it is the plaintiff's case that work was started about the beginning of July. This is deposed to by the following witnesses for the plaintiff who had occasion to see the locality before the slip actually occurred. P. W. 1, Mrs. O' Neal, has a residential house close to Margaret Villa. She deposes that she passed by that locality on 23rd July and also before that date and she saw the railway workmen digging and cutting all along the line. P. W. 2, Satya Ranjan Das Gupta says that he was in Darjeeling in July and August, that he passed by the road about 20 or 21 days before the slip, and that he saw the railway workmen cutting 200-250 feet along the place. P. W. 3, Sarat Ch. Chakravarti also deposes to the same effect. P. W. 9, Karak Lal Das is the stable superintendent of the plaintiff and he lives on the premises. He seeks to support the plaintiff's case as made in the plaint and deposes that he saw the railway men cutting the hillside on 8th July, again on 18th July, and the third time on 24th or 25th July before the slip had occurred on 8th August. He did not however write to inform his master till.8th August, vide his letter Ex. 4 and his telegram of 9th August Ex. 6 was sent after the slip had occurred. Mr. S.K. Dutt, who was examined on commission as a witness for the plaintiff, stated that he saw some cutting going on 8 days or so before the slip, which is not inconsistent with the defendants' case. Hiralal Ghose, witness 7 for the plaintiff, states that about a month before the slip he saw the railway people shifting the railway lines as the stones were interfering with the traffic. The learned Subordinate Judge did not place any reliance on the evidence of Karak Lal Das. He is of course interested and we agree with the learned Judge in thinking that his evidence is unreliable. As regards the other witnesses, their evidence is not definite enough for the purpose of fixing a date on which the cutting of the hillside was begun. Not only as regards the date, but as regards the quantity and the nature of the work also, the evidence is very indefinite and it suffers from the fact that the witnesses were deposing long after the occurrence when they must have forgotten the details. Furthermore all this oral evidence is not supported by documentary evidence of any kind.
5. In addition to this the plaintiff has put in evidence the statements of certain persons who examined the place some time after the slip had occurred. One of them is Mr. K. Dutta Gupta, a District Engineer, who made enquiries with Babu Hiralal Ghose, P. W. 7, and made a report regarding the slip. Then there is Mr. Donelan who had been in the service of the railway company from 1889 to 1910 and has also acted as a Permanent Way Inspector. He deposes among other things to the composition of the soil near about the place of the occurrence and says that in his opinion the usual method to avoid a slip is to slope down the site by cutting away earth from the top by which the weight at the top is removed and strengthening the base by putting rivetment walls. Mr. S.K. Dutt also made an examination of the place after the slip. He says that he saw the place a day after the slip, but it appears from the evidence of Hiralal Ghose P. W. 7, that the examination might have been made about a month later. Generally speaking, the evidence of these witnesses as to the condition of the hillside immediately before the slip is based on hearsay. The composition of the soil is stated to be sand mixed with boulders, which throws very little light on the question at issue and the opinion of these expert witnesses as to the cause of the slip is mere speculation. It does not go to prove that the cause must have been the work done on the hillside by the Railway Company. They did not notice springs, but it is admitted that springs do always come up to surface and might escape observation. The defendants have given evidence to show that the portion between bridges 511 and 512 was an old settlement. Their witness 5, Mr. Webber, who acted as Permanent Way Inspector at the material time, deposes that in 1926 there was a slight settlement. In July 1927 he noticed a similar settlement, and on the 26th July he sent a telegram to the Assistant Engineer, Public Works Department, vide Ex. C as follows:
Kindly sanction cutting of hillside as a large portion is coming down due to settlement which may lead to a serious blocK if not removed.
6. This evidence, which is amply corroborated by other witnesses, goes to show that by the 25th July the slip had already started. On the work being sanctioned by telegram on the 26th July this officer cut the rock which was infringing the running dimensions of the trains and removed the details. According to this officer this rock was at the Ghoom end (i.e. south) of the large rock, and it had moved forward and fallen on the road. The work went on from the 26th July, but the settlement was gradually taking place and eventually, on the 8th August at 10 p.m., the whole hillside between bridges 511 and 512 slid away to a length of 350 feet taking the cart road and the railway track with it. The witness Sarada Kanta Banerji, who is an Overseer on the Railway, confirms the aforesaid evidence of the Permanent Way Inspector. On the 25th July he noticed that the cart road between bridges 511 and 512 had sunk about 2 feet and a crack had formed and also a small land--slip came down from the hillside to the south of a big rock blocking the railway line and the cart road drain there. He engaged coolies to clear the slip from the railway track and the road drain. The nature of the work that was done in order to prevent further mishap would appear from the work memo which was prepared on the 1st August, vide Ex. M. This work comprised cutting and sloping the hillside, rock breaking and rock cutting and clearing slip.
7. There is no justification for drawing the inference that this work was the cause of the slip that occurred on the 8th August. Defence witness 1 Bhakat Bahadur Chattri and defence witness 2 Dhanbir, who were engaged for the work, depose substantially to the same effect. Mr, White, who was examined on commission, was the Assistant Engineer, Public Works Department, at the time and he sent the telegram sanctioning the cutting of the hillside on the 26th July. He says that from 26th July to the 8th August the hillside was sinking daily and subsequently he discovered a number of springs which fact was reported by him to the Executive Engineer vide Ex. Z (h). This letter is dated 19th December 1928, but according to the witness the date should be 19th December 1927. Counsel for the appellant has contended that this is false, but the falsity could easily have been demonstrated by calling for the correspondence referred to in the letter. For the purpose of this appeal the point is not material. Mr. Batterbery, witness 3 for the defendants, was the Resident Engineer on the railway, at the time, and he received the telegrams Exs. C and D on his arrival at Kurseong on the 29th July. On the 30th July he had occasion to examine the slip that had been reported in the telegram Ex. C. This statement is sought to be discredited by a reference to Ex.13, the travelling allowance bill of this officer. But there is nothing in that document which is inconsistent with his evidence and we are not prepared to disbelieve him. He says that between bridges 511 and 512, just south of a big upstanding rock, a small rock mixed with earth had moved down towards the track and the cart road showed a distinct crack and slight settlement. Thereupon he ordered the contractor's men to chip away the face of this small rock that was moving, as it was likely to infringe over running dimensions.
8. He also ordered the contractor to fill in with earth and to save the crack that had appeared on the cart road. He inspected again on the 30th July when the small rock face referred to above was being cut and earth was being cleared from the drain and near the rock. This small rock was about 15ft. x 10ft. x 5ft. On the 8th August he again went up to bridge 512 and found that the cart road had sunk much more than on the 30th July and there was still a slight movement to the south of the big rock. He noticed no sign of movement of the hillside below the cart road, but he noticed 3 or 4 springs 100-150 ft. below the road and immediately below the point where the settlement was taking place. On the morning of 9th August when he was coming up to Darjeeling he saw that heavy slip had occurred and he would attribute the disaster to the springs below the cart road. He is positive that in July there was no work done between Ghoom and Darjeeling under the special repair estimate Therock referred to in this evidence went away with the big slip.
9. It appears that near about the bridge on either side of the slip area there is a jhora which is permanent and between the road and the hillside there is a drain. This however is not inconsistent with springs appearing at other places in the locality. The Railway Company, no less than the plaintiff, is interested in preventing a slip occurring at this place. The evidence shows conclusively that no cutting of the hillside took place before 25th July, that on that date a small slip occurred, and that this was the reason for the work being started on 26th July. At the trial the plaintiff sought to make a case that the company had been cutting the hillside for a month before the slip in order to remove two level--crossings between bridges 511 and 512 and to divert the railway track towards the hillside. This was denied (vide D. W. 5) and this case was given up during the argument in this Court. The evidence shows conclusively that by 25th July natural forces were already at work towards causing the land--slip. It may be that the cutting of the hillside hastened this disaster. But no such case was made by the plaintiff. The plaintiff sought to prove that the whole cause of the disaster was the cutting of the hillside, while the defendants started a counter theory that the cause was the appearance of springs. It might be both, but there is nothing to show to what extent each might have contributed to the result and no such argument on behalf of the plaintiff was advanced. Mr. Banerji for the plaintiff has contended that the cause must be either the cutting or the springs, and that if the springs theory be given up then it must be the cutting. The expert evidence on the side of the plaintiff is all speculation. If speculation to some extent be unavoidable we may refer to the following passage in the evidence of Mr. Kerr who was the Superintending Engineer in charge:
The first thing I noticed when I got to the spot is that about 80 to 100 yards of the railway and road had slipped, that the slip had come down in practically a solid mass. It appears to have slipped down on an inclined plane. My reasons for saying this were that I noticed that the trees on the top of the mass that had come down were practically undisturbed and still vertical except round the edges of the slip. It seemed to me that the cause of the slip was that a mass of heavy and very hard rock was overlying a layer of shale and decomposed rock. The slip had been caused in the first place by water finding its way down between this large mass of hard rock and the underlying load of shale and decomposed rock. At the time of my visit the slip had practically slipped; there was slight movement in the south corner due to an isolated boulder. The main slip, as far as I could make out, was absolutely steady.
10. This opinion was formed after inspection of the place on 9th August, that is, the day after the slip. This is an officer of experience and the opinion was formed apparently after a very careful observation. There is no reason why, in preference to this, the opinion of the expert witnesses on the side of the plaintiff should be accepted. The burden of proof as to the cause of the slip is upon the plaintiff and it is not discharged merely by showing that the theory of springs is untenable. As a matter of fact, we are not prepared to hold that this theory is altogether untenable merely on the ground that it was not put forward in the written statement. Apparently the officers of the defendants had not formed a definite opinion as to springs being the cause of the slip until some time after the occurrence. But, in any case, the case made by the plaintiff, that the slip was caused by the cutting of the hillside on the part of the Railway Company, is not based on any reliable evidence as to the extent of the cutting. The plaintiff however rushed to make a case of damage at Rs. 50,000 as will appear from the telegram Ex. 10 and the letter Ex. 8, both of 10th August 1927, and the demand made on the Railway Company by the letter Ex. 11 of 11th August 1927.
11. In the course of his argument the learned Counsel for the appellant abandoned the case of negligence which was sought to be made at the trial. He pointed out that in any case, the defendant had dealt with the property and that he was entitled to the right to support from the adjacent or subjacent soil in respect of land in its natural state He contended that in any case the action of the railway in dealing with the property resulted in the weakening of the support and therefore the defendants, were liable even though they had acted carefully: see Gale on Easement Edn. 11,. pp. 360 and 361. Mr. Banerji also drew our attention to the following cases Humphries v. Brogden (1850) 12 Q B 739, Bonomi v. Blackhouse (1859) 9 H L C 503, Dalton v. Angus (1881) 6 A C 740 and Trinidad Co. v. Ambard (1899) A C 594. The fallacy of this argument is that Mr. Banerji has assumed that it is established that the slip was caused by the action on the part of the defendants. But this has not been established and it is this factor which distinguishes the present case from the cases cited. The more important ones amongst the aforesaid decisions have been referred to and discussed in the case of A. Minus v. E. Davey 1933 Rang 18 in which the law as regards the right to support has been considered. If a plaintiff proves that owing to an attempted withdrawal of support there is danger or apprehension of injury he may under certain circumstances be entitled to an injunction. But if damage is claimed the right to support must be shown to have been infringed and this infringement takes place as soon as and not until damage is sustained in consequence of the withdrawal of the support. A relation as between cause and effect will have to be established before a decree for damages may be made. This the plaintiff has failed to establish. Considering all the evidence we must agree with the trial Court in holding that the disaster was due to natural causes and that the plaintiff has not succeeded in proving that it was due to any action on the part of the defendants. In this view it does not become necessary to consider the question of damages. The suit was rightly dismissed and the appeal must be dismissed.
12. As regards costs it has been contended that the costs of the Secretary of State for India in Council should be borne by the railway company at whose instance the former was made a party. Considering the circumstances, however, we think that the appeal should be dismissed with one set of costs to be divided between the two sets of defendants. The appeal must therefore stand dismissed with costs as aforesaid.
13. I entirely agree.