IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 RSA.NO. 1205 OF 2009() ------------------------------------- AS.246/2006 OF DISTRICT COURT, TRIVANDRUM OS.119/2002 OF SUB COURT,NEYYATTINKARA .................... APPELLANT – APPELLANT – DEFENDANT NO.1: --------------------------------------------------------------------- RAJASEKHARAN NAIR, S/O.VELAYUDHAN PILLAI, AGED 45 YEARS, RESIDING AT 'SARANYA', BLOCK NO.X, WARD NO.IV, HOUSE NO.497, INDANNORKONAM, THOONGAMPARA, MARANALLOOR DESOM, MARANALLOOR VILLAGE, NEYYATTINKARAKARA TALUK. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENT(S) – RESPONDENTS – PLAINTIFF & DEFENDANT NO.2: ---------------------------------------------------------------------------------------------- 1. ARJUNAN, S/O.PETHIRU, AGED 35 YEARS, PULIMOOTTUVILAKATHU PUTHEN VEEDU, KARINGAL PULIMKOUD, MARANALLOOR DESOM, MARANALLOOR VILLAGE, NOW RESIDING AT ARDRA, T.C. NO.23/1038(2), THAMARAVELI COMPOUND THYCAUD (PO), THIRUVANANTHAPURAM. 2. SYAMALA, D/O. GOPALAN, AGED 50 YEARS, RESIDING AT PULIMATTUKONAM, MELE PUTHEN VEEDU, HOUSE NO.603, WARD NO.IV, BLOCK NO.X, THOONGAMPARA, MARANALLOOR PANCHAYAT, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1205 OF 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of November, 2009 J U D G M E N T ---------------------- Second Appeal arises from judgment and decree of learned District Judge, Thiruvananthapuram in A.S. No.246 of 2006 confirming judgment and decree of learned Sub Judge, Neyyattinkara in O.S. No.119 of 2002. Respondent No.1/plaintiff filed the suit for mandatory injunction to direct appellant and respondent No.2 to provide lateral support by constructing retaining wall. He alleged that appellant and respondent No.2 who owned the properties adjoining suit property removed earth from their properties and thereby the suit property lost its lateral support. Defendant No.3 is said to be a worker under the appellant. Trial court found that appellant and respondent No.2 are liable to construct the retaining wall and provide lateral support to the suit property and decreed the suit. That judgment and decree are confirmed by the first appellate court. Hence the Second Appeal at the instance of defendant No.1 raising by way of substantial question of law whether courts below were justified in granting mandatory injunction for lateral support on the facts and evidence of the case. 2. It is not disputed that appellant owned property on the northern boundary of suit property. Though there is some discrepancy R.S.A. NO.1205 of 2009 -: 2 :- as to the actual extent of the suit property which is of no relevance here, there is no challenge to the title and possession of the suit property with respondent No.1. Property of respondent No.2 is on the west of the suit property. Respondent No.1 alleged that appellant and respondent No.2 removed earth from their properties adjoining suit property which affected its lateral support. Appellant contended that he had not removed earth from his property and even at the time he purchased property that property was in the condition as on the date of suit. Advocate Commissioner who inspected the properties submitted Exts.C1 and C2 series, report and plan. Commissioner has reported that property of appellant is situated at a lower level by three feet from the property of respondent No.1. The Expert Commissioner (an Engineer by profession) after inspection of the properties has opined that it is necessary to construct retaining wall to provide lateral support to the suit property on account of removal of earth from its boundary and considering the loose nature of the soil. 3. Contention raised is that appellant had not removed earth from his property and that at the time he purchased the property it was in the same condition which the Commissioner has reported. It is also contended that there is no legal right for respondent No.1 to direct appellant to put up retaining wall. R.S.A. NO.1205 of 2009 -: 3 :- 4. A right for lateral support for unburdened land is a natural right which every owner of the property has and which is recognised in law between the owners of adjacent land. Statutory recognition for that right comes from Section 7 of the Easements Act (for short, “the Act”) (See K.J. Jacob v. Nandagopalan & Others – 1983 KLT 95). It is only when the land is burdened with structures and lateral support is claimed that a right has to be prescribed by the provisions of the Act. There is no contention in this case and learned counsel also fairly conceded that there are no structures in the suit property. Hence no question of acquiring a right of easement for lateral support arose. Respondent No.1 is entitled to natural right of lateral support. 5. It is no answer to say that even before appellant purchased his property earth was removed from that property. Liability to provide lateral support runs with the land and the appellant as assignee is bound to provide the same. It is then contended by learned counsel that report of the Advocate Commissioner who inspected the property on 29.11.2004 would show that on the north and north eastern side of the suit property appellant has levelled his land with that of the suit property and hence construction of retaining wall is not necessary. First appellate court has considered that question in paragraph 14 of the judgment and observed that the mere R.S.A. NO.1205 of 2009 -: 4 :- fact that at present the land of appellant has been raised to the level of property of respondent No.1 by putting up some mud is not sufficient considering the extent and quantity of earth already removed from the boundary. Report of the Expert Commissioner (Engineer) would show that the soil is loose. He has also opined that construction of retaining wall is necessary to give support for the suit property. These are findings of fact entered by the courts below on the evidence on record and involves no substantial question of law. The Second Appeal is without any merit. Second Appeal is dismissed in limine. Interlocutory Application No.2745 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. R.S.A. NO.1205 of 2009 -: 5 :- =================== R.S.A. NO.1205 of 2009 =================== J U D G M E N T 18TH NOVEMBER, 2009