IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 RSA.No. 211 of 2004() --------------------- AS.99/2000 of ADDL.DISTRICT COURT-II,MAVELIKKARA OS.330/1996 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------- 1. JESSY RAJU W/O. M.Y.RAJU, MOLETHU HOUSE, VERRIYAR MURI, VETTIYAR VILLAGE, MAVELIKARA. 2. M.Y.RAJU S/O. YOHANNAN OF. DO.DO., REPRESENTED BY JESSY RAJU, POWER OF ATTORNEY HOLDER 3. M.Y.JACON OF DO.DO., REPRESENTED BY JESSY RAJU, POWER OF ATTORNEY HOLDER BY ADV. SRI.R.RAJASEKHARAN PILLAI SRI.GEORGE T. THACHETT RESPONDENT(S): APPELLANT/DEFENDANT ---------------------------------- ZACHARIA, 49 YEARS, S/O. LATE THOMAS, MOLETHU KISHZAKKEVEEDU, VETTIYAR MURI, VETTIYAR VILLAGE, MAVELIKARA. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.R.PADMAKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA NO.211 OF 2004 ............................................ DATED THIS THE 16th DAY OF JUNE, 2011 JUDGMENT Plaintiffs in O.S.330 of 1996 on the file of Munsiff Court, Mavelikkara are the appellants. Respondent is the defendant. The suit was one for permanent prohibitory injunction. Plaint A schedule property belongs to the first appellant and plaint B schedule property to the second appellant. Plaint C schedule property of the respondent lies immediately to the east of the plaint A and B schedule properties. Admittedly, plaint A and B schedule properties are on a higher level than plaint C schedule property which is on a lower level. The properties are slopping from west to east. The grievance of the appellants is that respondent started escavating the plaint C schedule property upto the western boundary of plaint C schedule property and thereby respondent is taking away the lateral support available to the plaint A and B schedule properties and he has no right to do so. A decree for mandatory injunction was sought to construct a retaining wall so as to restore the lateral support, which was lost RSA 211/2004 2 by removal of soil from the plaint C schedule property and also for a permanent prohibitory injunction from further escavation and thereby removing the lateral support. Respondent resisted the suit contending that removal of soil from plaint C schedule property will not cause any loss of lateral support and appellants are not entitled to the decree sought for. 2. Learned Munsiff on the evidence found that if soil from plaint C schedule property is to be removed upto its western boundary, it would result in loss of lateral support naturally available to the plaint A and B schedule properties and by removal of soil loss of lateral support was caused and granted a mandatory injunction directing respondent to construct a retaining stone wall. A decree for permanent prohibitory injunction was granted restraining respondent from removing the soil further so as to cause loss of lateral support. Respondent challenged the judgment before Additional District Court-II, Mavelikkara. Learned Additional District Judge on reappreciation of the evidence found that lateral support for plaint A and B schedule properties could be claimed only as long as they are kept in its natural condition and evidence show that appellants have caused artificial pressure to plaint A and B schedule RSA 211/2004 3 properties by constructing a granite wall on their eastern boundary and therefore appellants are not entitled to claim lateral support available under illustration (e) of Section 7 of Indian Easement Act and they could claim lateral support, in view of the constructions made, only by recourse to the right of easement by prescription and as it is not pleaded or proved, appellants are not entitled to the decree sought for. Appeal was allowed and the decree passed by the learned Munsiff was set aside and suit was dismissed. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial question of law. “ Is the construction of a boundary wall at a height of 2 ½ feet would substantially change the landscape so as to obviate the responsibility of the neighbouring property owner to maintain the lateral support ? 4. Learned counsel appearing for appellants and learned senior counsel appearing for respondent were heard. 5. The learned counsel appearing for appellants pointed out that in spite of the claim for lateral support to the plaint A and B RSA 211/2004 4 schedule properties in the plaint, respondent in his written statement has not contended that appellants have put additional pressure on the plaint A and B schedule properties and thereby plaint A and B schedule properties are not entitled to get lateral support from the plaint C schedule property. Learned counsel also argued that such a plea was sought to be introduced before the first appellate court, by filing I.A.128 of 2002 under Rule 17 of Order VI of Code of Civil Procedure by amending the written statement and that application was dismissed and in such circumstances, first appellate court was not justified in considering the question whether appellants by increasing the pressure, by construction of a compound wall in the plaint A and B schedule properties were disentitled from claiming lateral support to the plaint A and B schedule properties from plaint C schedule property. Learned counsel further argued that even if by construction of a granite wall on the eastern boundary of the plaint A and B schedule properties, appellants have increased the pressure over the plaint A and B schedule properties, the said increased pressure is negligible and will not disentitle them to claim lateral support from plaint C schedule property. 6. Learned counsel relying on the decision of this court in RSA 211/2004 5 Narayanan V. Sankaran ( 1971 KLJ 599) and Kalyani V. Bhaskaran (1993(1) KLT 415) argued that even if it is taken that by construction of a compound wall on the eastern boundary of the plaint A and B schedule properties, appellants have added artificial pressure on the plaint A and B schedule properties, it is not a valid ground to deny the lateral support available to plaint A and B schedule properties on its natural state and in such circumstances, first appellate court was not justified in interfering with the decree granted by the trial court. Learned counsel finally submitted that in any case, if the case of respondent is that appellants have added pressure by construction of a granite wall, an opportunity is to be granted to the appellants to adduce further evidence, including scientific evidence and therefore the suit may be remanded. 7. Learned senior counsel argued that the question whether appellants are entitled to a right of lateral support is a question of law and while considering the claim of the appellants, whether appellants have altered the natural state of the plaint A and B schedule properties is a question of fact and that was not disputed and appellants are residing in a house constructed in the plaint A schedule property and Ext.C1 report submitted by RSA 211/2004 6 the Commissioner establishes that in addition to a granite wall on the eastern boundary, a cow shed and a bathroom were constructed in plaint A schedule property and therefore it cannot be disputed that appellants have increased the pressure available on the plaint A and B schedule properties. Learned senior counsel pointed out that when plaint A and B schedule properties are slopping from west to east, any artificial pressure created on the plaint A and B schedule properties, would add further pressure on the remaining property towards the east and if that be so, appellants cannot claim lateral support from plaint C schedule property as they have not claimed lateral support by easement of prescription and first appellate court was justified in interfering with the findings of the trial court. Learned senior counsel also pointed out that the evidence of PW3, the witness and PW4, the Commissioner establish that the area where plaint A, B and C schedule properties lie, is a rocky area and the practise is to remove the stones upto the boundary of one's property and even on the eastern boundary of the plaint C schedule property, neighbouring owner has removed soil upto the western boundary of his property and in such circumstances, even if soil is removed from the plaint C schedule property upto its western boundary, it RSA 211/2004 7 will not cause any loss to the plaint A and B schedule properties and therefore there is no reason to interfere with the findings of first appellate court. Learned senior counsel also pointed out that on the evidence, a remand is not warranted. 8. Every piece of land carries with it the rights mentioned in clause (a) and (b) of Section 7 of the Easement Act namely:- (a) the exclusive right to enjoy and dispose of the same; the exclusive right to enjoy and dispose of all accessions thereto; (b) the right to enjoy, without disturbance by another, the natural advantages arising from its situation. Natural rights are those incidents and advantages which are provided by nature for the use and enjoyment of certain property. They are regarded by law as incident to the ownership of land and as inherent in land by the law of nature. They are rights in rem enforceable against all the world, subject only to curtailment by an easement. 9. Illustration (e) of Section 7 explains the right as follows:- “The right of every owner of land that such land in its RSA 211/2004 8 natural condition shall have the support naturally rendered by the subjacent and adjacent soil of another person.” Explanation makes it clear that “land is in its natural condition when it is not escavated and not subjected to artificial pressure and the subjacent and adjacent soil mentioned in the illustration is such soil only as in natural condition would support the dominant heritage in its natural condition.” 10. Every owner of land has a natural right that in its natural condition such land have the support naturally rendered by its subjacent and adjacent soil belonging to another person. The right is for support vertically from the subjacent strata and laterally from the adjacent soil. In the natural state of land, one part of it will receive support from another, upper from the lower strata and soil from adjacent soil. This natural support is available so long as the status quo of the land is maintained. Field J in Dalton V. Angus (1881 6 App.Cas. 740) explained the right as follows. “So soon as surface of the land becomes divided, either vertically or horizontally, into RSA 211/2004 9 separate land and exclusive tenements.... the owner has the right given to him, by implication of law, to use his property as best as he likes, provided that by such user he does not injure the rights of his neighbour. If neither he nor his neighbour have built on or dealt with their respective portions, and the latter are in their natural state and condition, it is clear that each owner has against the other a right to have his soil supported by the soil of his neighbour, whether adjacent or below, and any act done by one which destroys that support so that the land of the other falls is an actionable wrong, and that is so, although the act complained of is not done by him maliciously, but simply in the exercise of his own right to use his own property. Although, therefore, either of them may dig in his own soil as deep and as near to his own boundary or to the surface as he chooses, this right is subject to one limitation from the very first, viz, that he cannot dig so deep and so near as to cause the neighbour's land to sink, unless he substitutes some other efficient support. The limitation, however, upon his right is accompanied by a like limitation of this RSA 211/2004 10 neighbour's right, so that the advantage and burthen are mutual in quality, although they may vary in degree..... these rights and burthens come into existence by implications of law at a very moment of severance...They are questionably known as natural rights and require no age to ripen them”. Thus the law is clear. Just like the right of a person to construct a building or boundary wall upto the extremity of his property, his neighbour has also a right to dig to the very extremity of his property, provided the natural right available to the neighbour is not infringed. But that right is available only when the land is kept in its natural condition. If the person has built structures on his land and thereby added the pressure on his property, the right of lateral support for the artificial pressure so caused, natural right for the increased pressure cannot be claimed. It is to be acquired. Such right can be acquired only as provided under Section 15 of Indian Easement Act. 11. When plaint A and B schedule properties lie adjacent on the west of plaint C schedule property and properties are lying on a slope from west to east, definitely in its natural condition, plaint A and B schedule properties are entitled to get lateral RSA 211/2004 11 support from plaint C schedule property. But as provided under illustration (e) of Section 7, the right of natural support is available only so long as it is kept in the natural condition. If the owner of the plaint A and B schedule properties have imposed increased pressure by constructing any structure in the plaint A and B schedule properties, they cannot claim a natural right of lateral support due to the artificial pressure caused by construction of structures, and could claim lateral support only as a right of easement by prescription. True, as held by this court in Narayanan's case (supra) and Ramakrishnan's case (supra), that does not mean that when an artificial pressure is imposed on the property by its owner, the natural lateral support otherwise available to that property will be lost. Even in such a case, natural lateral support will be available to the extent it was available on the original natural state. But the question is when there is no material to distinguish between the natural support originally available and the artificial pressure, which has been subsequently imposed on the plaint A and B schedule properties by the appellants, whether appellants are entitled to claim lateral support from the plaint C schedule property. 12. As rightly pointed out by the learned senior counsel, the RSA 211/2004 12 evidence establish that the locality where plaint schedule properties lie, is having hard sub soil due to the rocks. It is also proved that the practise is to cut and remove laterite stones available upto the extreme boundary of ones property. The evidence of PW3, the witness examined by the appellants, establish that the owner of the property which lies next to the eastern boundary of the plaint C schedule property had removed soil upto the extremity of his western boundary and no lateral support is available to the plaint C schedule property from the eastern property. Ext.C2 report along with the evidence of the Commissioner also shows that at several places in that area, soil has been removed likewise. Therefore, from the nature of the soil available in the locality, removal of soil from the neighbouring property by itself will not cause any loss of lateral support to the plaint A and B schedule properties. Even without lateral support, vertical support from the rocks would be sufficient, as is clear from the evidence. In such circumstances, the question is whether the finding of the first appellate court that appellants have burdened the plaint A and B schedule properties by artificial pressure is correct. 13. Though the learned District Judge has only found that RSA 211/2004 13 appellants have burdened the plaint A and B schedule properties by constructing a granite wall on the eastern boundary, evidence establish that they have burdened the plaint A and B schedule properties by constructing a residential house and a cow shed and a bathroom. It cannot be disputed that these structures will increase the pressure. It is thus clear that artificial pressure was imposed on the plaint A and B schedule properties. Appellants have not claimed that they have prescribed a right for lateral support for those structures or for the artificial pressure so imposed on the plaint A and B schedule properties by easement of prescription. As is clear from the illustration (e) to Section 7, appellants cannot claim lateral support to the plaint A and B schedule properties, when they have increased the pressure on the plaint A and B schedule properties by construction of super structures like house, cowshed, bathroom and granite compound wall. The facts of the case is entirely different from the facts of the case relied on by the learned counsel in Narayanan's case (supra). Though this court found that the plaintiff in that suit is entitled to get lateral support, in spite of the added pressure imposed by him, on facts it was found that no artificial pressure was imposed by the plaintiff. The allegation itself was that by RSA 211/2004 14 constructing a laterite stone embankment in the property, the plaintiff has increased the pressure and therefore the property is not entitled to the lateral support from the neighbouring property. This court on the facts found that the said construction will not add pressure so as to deny the lateral support available to the property of the plaintiff in its natural condition. In Kalyani's case (supra), the allegation was that the defendants have removed earth from their property and they heaped the earth on the playground and thereby added artificial pressure in the property of the plaintiff and therefore plaintiffs are not entitled to claim the lateral support. This court, on the facts found that as the Commissioner's Report shows that plaintiff only lowered the level of her property on her north western boundary, adjoining the plaint B schedule property, by doing so, instead of adding pressure at the side where lateral support is claimed, plaintiff has reduced pressure by removing earth. It is in such circumstances claim for lateral support was upheld. These facts cannot be equated to the facts of the case. On the evidence, first appellate court was fully justified in holding that appellants are not entitled to the lateral support claimed for the plaint A and B schedule properties, in view of the artificial pressure imposed by RSA 211/2004 15 construction of structures therein. Therefore first appellate court rightly set aside the decree for mandatory and prohibitory injunction granted by the trial court. On the facts and the evidence on record, I do not find that a remand to the trial court as sought for by learned counsel is warranted. Appeal is dismissed. Parties to suffer their respective costs. M.SASIDHARAN NAMBIAR, JUDGE lgk