IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 SA.No. 167 of 2002() -------------------- AS.17/1997 of PRL.SUB COURT,IRINJALAKUDA OS.369/1994 of PRL.MUNSIFF'S COURT, IRINJALAKUDA .................... APPELLANT/ APPELLANT/DEFENDANT --------------------------------- BABU S/O. ITTUTHAN KURIAPPAN, NANDHIKKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) RESPONDENT/RESPONDENT/PLAINTIFF ----------------------------------- RAVI, S/O. MANAKKATTUPADI MANI, NANDIKKARA VILLAGE, MUKUNDAPURAM TALUK. ADV. SRI.K.G.BALASUBRAMANIAN SMT.SREEKALA KRISHNADAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.431/2002 IN S.A.NO.167/2002 ------------ Dismissed 09/07/2010 Sd/- Harun-Ul-Rashid, Judge. HARUN-UL-RASHID,J. ------------------------------ S.A.NO.167 OF 2002 ------------------------------- DATED THIS THE 9TH DAY OF JULY, 2010 JUDGMENT Defendant in O.S.No.369/94 on the file of the Principal Munsiff's Court, Irinjalakuda is the appellant. The the suit was for mandatory injunction. The trial court decreed the suit directing the defendant to put up a retaining wall on the western extremity of his property with granite stones for preventing the subsidence of soil in the plaint schedule properties. It is the plaintiff's case that the defendant is owning and holding property on the eastern side of the plaint schedule property and that both the properties were lying on the same level. In the plaint it is pleaded that a small bund was put up on the eastern boundary of the plaint schedule properties. According to the plaintiff, he is entitled to get lateral support from the property of the defendant. It is alleged that the defendant has begun to dig his properties and the excavation process began is causing damages to the eastern boundary of the plaint schedule -2- S.A.167/2002 properties. 2. In the written statement filed by the defendant it is inter alia contended that the plaintiff has filled up his properties with earth and raised the level of the properties and therefore the plaintiff is not entitled to get lateral support from the property of the defendant. 3. The evidence in this case consists of PW1, PW2, DW1, Exts.A1 to A3 and C1 to C4. The plaintiff contended that both properties were lying in the same level and due to excavation process the defendant's property is now lying about 20ft. below the level of the plaint schedule properties and thus according to the plaintiff, the lateral support of the plaint schedule properties is lost. The definite case of the defendant is that the properties were paddy lands. Plaintiff raised the level of the properties by putting earth. So the natural condition of the property was changed, therefore, the plaintiff is not entitled to get lateral support for his property. -3- S.A.167/2002 4. Admittedly the plaint schedule property originally was paddy land and now it is lying as dry land. The plaintiff contended that he did not resort to filling for raising the level of the land as alleged by the defendant. The Commissioner deputed by the court below submitted Exts.C1, C3 and C4 reports and Ext.C2 plan. The Commissioner in detail reported the area from which the plaintiff has removed earth. At pages 5 and 6 the Commissioner reported three items of excavation work done by the plaintiff. He also reported that the plaint schedule property is a reclaimed land and that at three areas he has noticed pits. He furnished the measurements. The lst pit is having 125 ft. length, 15ft. width and 3 ½ ft. depth, the 2nd pit is also same length, 6ft. depth and 20 ft. width and the 3rd pit is at the length of 30 ft., 3 ½ ft. width and 3 ¾ ft. depth. All the pits are extensive pits, which may have the effect of causing damage to the neighbouring properties as well. The Commissioner also reported that the defendants also put up pits in his properties by -4- S.A.167/2002 excavation of earth. The Commissioner further reported that the defendant provided a strip of land as lateral support to the plaintiff's properties. 5. It is settled law that the right for lateral support is available only so long as the owner keeps his land in the natural state and if he subjects it to additional pressure or excavation or burden so as to alter the natural state then the right of support to that extent is lost. If an additional burden is imposed on the plaintiff's land, it must be held that natural right for support to that extent is lost. The trial court considered only part of the Commissioner's report. I have already mentioned in the preceding paragraphs the report of the Commissioner which shows that the plaintiff has removed earth in an extensive area and dug pit altering the nature of the plaint schedule property. 6. The Lower Appellate Court confirmed the judgment and decree passed by the trial court. The learned counsel for the appellant submitted that the trial court as well as the Lower -5- S.A.167/2002 Appellate Court did not go into the legal rights of the respective parties and did not consider or appreciate properly the pleadings and evidence on record. The learned counsel brought to this Court's notice pages 5 and 6 of the Commissioner's report. In those pages the Commissioner reported that the excavation work was done by the plaintiff. There is no mention about that part of the report in the judgments of the trial court and the Lower appellate Court. On a reading of the judgments of the courts below, I am of the view that the courts below did not consider the relevant documents in the proper perspective and did not consider the effect of legal and factual impact of the commission report and other documents on the rights of the parties. Therefore, this Court is of the considered view that the matter requires re-consideration. In the result, the appeal is allowed. The case is remanded to the trial court for fresh consideration. The parties are at liberty to amend the pleadings and to adduce evidence, if -6- S.A.167/2002 so advised. The parties shall appear before the trial court on 5th August, 2010. The trial court shall consider the matter afresh and dispose of the same in accordance with law within a period of nine months from the date of appearance of the parties. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv.