IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 RSA.No. 1223 of 2009() ---------------------- AS.272/2006 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.218/2001 of I ADDL.MUNSIFF COURT (RENT CONTROL COURT),TRIVANDRUM .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 & 2 ---------------------------------------------------------- 1. SOMAN, S/O. MADHU NADAR, HOUSE NO.KP XVI/118, ANAKUZHI, KALLIYOOR VILLAGE, VELLAYANI P.O., THIRUVANANTHAPURAM. 2. SUNITHA, D/O. SUMATHI, CHEMMANNUVILA VEEDU, HOUSE NO.K.P.XVI/71, KALLIYOOR VILLAGE, THIRUVANANTHAPURAM TALUK. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN SRI.NITA N.S. RESPONDENTS/RESPONDENTS/PLAINTIFFS & 3RD DEFENDANT ----------------------------------------------------- 1. ARJUNAN NADAR, S/O. VELAYUDHAN NADAR, HOUSE NO.11/645, KALLIYOOR PANCHAYATH, KALLIYOOR VILLAGE, THIRUVANANTHAPURAM. 2. RAJEE SANITH, D/O. ARJUNAN NADAR, HOUSE NO.11/645, KALLIYOOR PANCHAYATH, KALLIYOOR VILLAGE, THIRUVANANTHAPURAM. 3. MURALI, CONTRACTOR, NEAR PAZHANCHIRA TEMPLE, AMBALATHARA, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1223 of 2009 --------------------------------------- Dated this 19th day of January, 2010 JUDGMENT The second appeal arises from judgment and decree of learned Additional District Judge-I, Thiruvananthapuram in A.S.No.272 of 2006 confirming judgment and decree of learned Additional Munsiff (Rent Control Court), Thiruvananthapuram in O.S.No.218 of 2001. 2. Respondent Nos.1 and 2/plaintiffs sued appellants and respondent No.3/defendant No.3 for a decree for prohibitory and mandatory injunction. Plaint A schedule property belonged to respondent Nos.1 and 2. The adjoining plaint B schedule item No.1 belonged to appellant No.1 and is situated on the south of the plaint A schedule. Plaint B schedule item No.2 which belongs to appellant No.2 is situated on the east of plaint A schedule. The plaint A and B schedules lie in slope, plaint A schedule being on the higher plain. Plaint A schedule property was enjoying lateral support from plaint B schedule items by an easement by prescription. Appellants and respondent No.3 removed soil from plaint B schedule items extending up to the boundary of plaint A schedule resulting in a loss of lateral support for plaint A schedule. That affected plaint A schedule and house situated thereon. Hence respondent Nos.1 and 2 sued for prohibitory injunction against further removal of soil from plaint B schedule and for mandatory injunction to direct appellants and respondent No.3 to restore the lateral support already lost. Appellants R.S.A.No.1223 of 2009 2 denied the various allegations and claimed that since the land is rocky and hard, there is no possibility of any portion of plaint A schedule sliding down. They denied that they removed soil from plaint B schedule items as alleged by respondent Nos.1 and 2. Learned Munsiff obtained the report and sketch through Advocate Commissioners, collected evidence and came to the conclusion that the act of appellants removing soil from plaint B schedule items has resulted in loss of natural support for plaint A schedule which is to be restored. Appellants are directed by a mandatory injunction to construct a granite retaining wall as suggested in Ext.C2 series in plaint B schedule items up to the height of plaint A schedule leaving a width of 0.5 meters from the southern and eastern boundaries of plaint A schedule. There was also an order of prohibitory injunction against appellants and respondent No.3 removing further soil from plaint B schedule adjoining the boundaries of plaint A schedule. Appellants/defendant Nos.1 and 2 challenged the judgment and decree but, in vain. Hence the second appeal urging by way of substantial question of law whether the courts below in the absence of any expert opinion were justified in concluding that removal of soil from plaint B schedule items resulted in loss of lateral support for plaint A schedule property. It is contended by learned counsel that in the nature of allegations made by respondent Nos.1 and 2 and denial made by the appellants, opinion of an expert regarding nature of the properties and loss of lateral R.S.A.No.1223 of 2009 3 support was essential before directing construction of granite retaining wall. According to the learned counsel, in the nature of soil at the spot, there is no possibility of any portion of plaint A schedule sliding down. 3. The owner of a property is entitled to have lateral support for his property from the adjascent property which is a natural right as per section 7 of the Indian Easements Act (for short, “the Act”). Of course, if he burdens his land with structures and lateral support is claimed for the said structures as well, necessarily he has to prescribe a right under section 15 of the act so far as support to the structures is concerned. The extent of plaint A schedule is 19.35 ares as per assignment deed No.2672 of 1968 which belongs to respondent No.1 and 20 cents belonging to respondent No.2 as per gift deed No.2200 of 1994. It is admitted that there is a house in plaint A schedule property where respondent Nos.1 and 2 and family are residing. Going by the report of the Advocate Commissioner (Ext.C1), the house is thatched with tin sheets. It is not a construction with RCC roofs. There is no case for appellants that construction of house in plaint A schedule has resulted in additional burden on plaint B schedule items and hence in the absence of prescription of right under section 15 of the Act respondent Nos.1 and 2 cannot claim lateral support. Therefore, the case has to proceed on the basis that respondent Nos.1 and 2 have a natural right for lateral support for plaint A schedule property under section 7 of the Act. In Exts.C1 and C1(a), the report and sketch, the R.S.A.No.1223 of 2009 4 Advocate Commissioner after inspection on 08-02-2001 has shown the lie of plaint A and B schedule items. Plaint B schedule items are on the east south of plaint A schedule. On the east it is the property of appellant No.2 while on the south, it is the property of appellant No.1. The Commissioner has reported that plaint B schedule is lying at a lower level from plaint A schedule by 1.60 meters as on the date of inspection and that soil was seen removed from plaint B schedule up to 4½-7 meters from the boundary of plaint A schedule on its east and south. Depth of the removal of soil was up to 7 – 9 meters. Commissioner reported in Ext.C1 that any further removal of soil will result in eroding lateral support for plaint A schedule. Another Advocate Commissioner visited the property on 12-10-2004. Exts.C2 and C2(a) are the report and sketch. Ext.C2 presents a still graver situation there was further removal of soil from plaint B schedule after the first Commissioner inspected the property. The second Commissioner has reported in Ext.C2 that at the time of his inspection, soil was removed from plaint B schedule up to 2 to 5 meters away from the eastern and southern boundary of plaint A schedule. The Commissioner has also reported that portion left without removal of soil stated above is as on the top while, towards the bottom portion it was seen that soil was removed almost up to the boundary of plaint A schedule. The Commissioner also reported that on account of that lateral support for plaint A schedule on the east has been completely R.S.A.No.1223 of 2009 5 lost. The situation on the south of plaint A schedule was not different. There, soil was removed upto a distance of 2 to 5 meters from the boundary of A schedule but, that measurement was not uniform throughout the southern side of plaint A schedule. On the southern side towards bottom portion there was deeper excavation towards the boundary of plaint A schedule. Considerable quantity of soil was removed by the appellants. 4. Now the question is whether in the absence of any expert opinion courts below were justified in holding that plaint A schedule property lost lateral support and directing its restoration. Though it was contended by the appellants that the land is rocky and hence, there is no possibility of sliding down, Exts.C1 and C2 do not shown that. On the other hand, it is seen that soil was removed upto the boundary of plaint A schedule if not on the top, at the bottom. It is admitted and proved by evidence also that properties are lying in slope and as reported in Ext.C1 plaint B schedule is lying at a lower level. In the circumstances of the case it does not necessarily require opinion of an expert to say that removal of soil from plaint B schedule affected lateral support for plaint A schedule. The finding of the courts below is on the strength of the evidence and involve no substantial question of law. 5. I stated that respondent Nos.1 and 2 have a natural right for lateral support which has been destroyed by the appellants. R.S.A.No.1223 of 2009 6 Necessarily appellants are bound to restore the lost support. Courts below have referred to the relevant authorities on the point and held that appellants are bound to restore the lost lateral support. 6. It is submitted by learned counsel that as per Exts.C1 and C2, still space is left in plaint B schedule items without removal of soil and that is sufficient to provide lateral support for plaint A schedule. That argument cannot be accepted since soil has been removed at close distance from the boundary of the plaint A schedule at the surface level and even up to the boundary at the bottom. Therefore there is the possibility of upper portion of plaint B schedule also sliding down. It is in the above circumstances that courts below found that it is necessary to have a granite retaining wall. Trial court has stated that granite retaining wall has to be constructed in plaint B schedule leaving a space of 0.5 meters from the eastern and southern boundary of plaint A schedule. On going through the judgments under challenge and hearing learned counsel for appellants I am satisfied that no substantial question of law is involved in the appeal requiring interference. Accordingly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/