IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 RSA.No. 628 of 2010() --------------------- AS.13/2008 of ADDL.DISTRICT COURT,KOTTAYAM OS.444/2004 of MUNSIFF COURT, VAIKOM .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- KUTTAPPAN,S/O.PAPPA,AGED 68,RESIDING AT MADAKKATHADATHIL,(NEDUVALA NIRAPPIL),KEEZHOOR KARA MULAKKULAM VILLAGE,VAIKOM TALUK. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH RESPONDENT(S): RESPONDENTS/PLAINTIFF ------------------------------------ 1. MEENAKSHI,W/O.DAMODARAN,AGED 73 YEARS, RESIDING AT ROHINI NIVAS,KEEZHOOR KARA, MULAKKULAM VILLAGE,VAIKOM TALUK. 2. VINOD,S/O.DAMODARAN,AGED 32 YEARS, RESIDING AT ROHINI NIVAS,KEEZHOOR KARA,MULAKKULAM VILLAGE,VAIKOM TALUK. 3. SREEKALA,D/O.DAMODARAN,AGED 27 YEARS, RESIDING AT ROHINI NIVAS,KEEZHOOR KARA,MULAKKULAM VILLAGE,VAIKOM TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2010, THE COURT ON 16/09/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.628 OF 2010 -------------------------------- Dated this the 16th day of September 2010 JUDGMENT The defendant is the appellant. Concurrent decision rendered by the courts below decreeing the suit in part in favour of the respondents/plaintiffs declaring that they are entitled to have lateral support from the property of the appellant/defendant and also restraining the defendant by a permanent prohibitory injunction from causing injury to such lateral support by removing sand from his property, with further directions to construct a supporting wall on the boundary of the plaintiff's property as specified, to undo the mischief to the extent the lateral support had been impaired, is challenged in the appeal. Though the plaintiffs have claimed for a mandatory injunction for the status quo ante before the removal of the lateral support to their property as canvassed for, the trial court granted that relief only to the extent of directing the defendant to construct a protection wall adjacent to his property, that too, as identified by the advocate commissioner in his report and sketch. First appellate court, negativing the challenges raised by the defendant in his appeal against the trial court confirmed it without any modification. R.S.A No.628 OF 2010 - 2 - 2. Before me, the main thrust of challenge pressed into service by the learned counsel to assail the concurrent decision rendered by the courts below as indicated above is two fold. By removal of the soil from the property of the appellant/ defendant, it is submitted by the counsel, no lateral support is lost to the property of the plaintiffs. The decree was granted solely on the basis of Ext.C1 report and Ext.C1(a) plan collected by the advocate commissioner who was not an expert to determine lateral support or to express any opinion over the same. No expert opinion was tendered or taken by the court with reference to the properties involved to consider whether the claim for lateral support raised by the plaintiffs deserve any merit. The decree was granted solely on some assumptions, primarily, based on the report of the advocate commissioner and as such it is unsustainable under law. It is submitted by the counsel there is no damage to the property of the plaintiffs consequent to the removal of sand from the property of the defendants, for the last six years, after passing of the decree by the trial court, and that circumstance, it is contended, is relevant in showing that the plaintiffs have no lateral support to their property from that of the appellant/defendant. R.S.A No.628 OF 2010 - 3 - 3. After going through the judgments rendered by both the courts below, I find no merit in the submissions made by the counsel to assail the decree granted in favour of the respondent/plaintiff. There is no dispute regarding the title and identity of the properties claimed by the plaintiffs to which lateral support is claimed from the property of the defendant. The defendant has removed soil from his property close to and adjoining to the property of the plaintiffs is also not a matter of controversy. Over and above seeking the assistance of the court in deputing an advocate commissioner to conduct a local inspection over the properties and getting of Ext.C1 report and C1(a) plan to establish the reliefs canvassed, the plaintiffs examined three witnesses including the advocate commissioner as PW1 to PW3. PW1 is the second plaintiff. PW2, the advocate commissioner and PW3, a close neighbour. The evidence tendered by the plaintiffs corroborated by Ext.C1 report and C1(a) plan prepared by the commissioner after local inspection was accepted by the trial court to grant the decree in favour of the respondents/plaintiffs to the extent referred to above, and the appellate court, after reappreciation of the materials, has confirmed such decree. R.S.A No.628 OF 2010 - 4 - 3. The plaintiffs are having title and possession over item No. 1 and 2 properties. Item No.3 property is that of the defendant. Item No.4 property is a portion of item No.3 having a width of 3 meters adjoining to the northern boundary of item No.1 property, from where the defendant is alleged to have removed sand to a depth of 20 feet. Similarly, item No.5 property is described as a portion of the property adjoining to the northern boundary of item No.2 property having a width of 3 meters and length of 40 meters. The retention of item No.5 property as such and a decree of mandatory injunction by way of constructing a boundary wall in item No.4 property to bring back the status quo ante before removal of the soil were the substantial reliefs canvassed by the plaintiffs seeking a declaration that they are entitled to lateral support of their item No.1 and 2 properties from item No. 3 property belonging to the defendant. The advocate commissioner reported that from item No.3 property of the defendant, soil had been removed to considerable extent from its portion, described as item No.4 in the plan, and it has affected the lateral support to item No.1 property of the plaintiffs. It is also reported that item No.2 property of the plaintiffs also require lateral support from item No.3 property of the defendant. However, with respect to the construction of the protection wall in R.S.A No.628 OF 2010 - 5 - item No.4 and also lateral support claimed in item No.5, in both of which the plaintiffs claimed such support for the three meters, the commissioner reported that such support need be for width of one meter of land in the respective items, item Nos. 4 and 5 adjoining to item No. 1 and 2 respectively, touching upon item No.3 property of the defendant. No objection was filed to the report by the defendant. In evidence, it has come out, as seen from the judgment of the trial court, that the defendant had removed sand from his property using JCB and that he had sold gravel for a price of Rs.100/- per load and the laterite sand for Rs.50/- per load. Though he stated that he had removed the sand leaving atleast one meter width from the property of the plaintiffs, the report of the commissioner showed that the removal was up to the boundary of the plaintiff's property. The commissioner had also reported that the excavation of sand from item No.3 property is likely to cause soil erosion to item No.4 property. Taking note of the evidence of defendant himself that some portion of his property has to be left untouched for the protection of the adjacent lands, on the materials produced, the learned Munsiff concluded that item No.1 and 2 properties require lateral support from item No.3 property of the defendant. Removing and excavating soil in item No.3 close to item No.1 and 2 properties, it R.S.A No.628 OF 2010 - 6 - was found, would result damage to those properties. The advocate commissioner is not an expert to speak on the lateral support available to a property, and also the damages likely to be suffered by removal of sand from the adjacent land, is not worthy of any merit. The civil court has to determine the disputed issues on preponderance of probability on the facts and circumstances established by the materials tendered. No expert opinion is required for the court to express any opinion or grant a decree for declaring the lateral support to an immovable property when such a relief is canvassed by a plaintiff in a suit. There was no dispute as to the identity of the boundary separating the properties of the parties and further the materials indicated that there was large scale removal of soil, even to considerable depth, from the property of the defendant adjoining to the properties of the plaintiffs. The court under such circumstances can act upon the report of the advocate commissioner, provided, there is corroborative materials as well to decide the question whether the claim of lateral support canvassed by the plaintiffs is sustainable. That alone was done in the present case. Conclusion formed by the trial court upholding the claim of plaintiffs, after reappreciation of the materials was also upheld by the first appellate court. No further injury had been caused to the R.S.A No.628 OF 2010 - 7 - properties of the plaintiffs by way of soil erosion after passing of the decree which has been canvassed to contend that the finding on lateral support to their property concurrently held by the two courts is not proper and correct, lacks any merit. Perpetual threat of injury to item No.1 and 2 by removal of the lateral support to such properties from the properties of the defendant, which has been fully established by the materials tendered in the case, is more than sufficient to sustain the decree granted in favour of the plaintiffs. Plaintiffs have not suffered further damage to their land after passing of the decree is not at all a circumstance that could be canvassed for to assail the decree granted in their favour. No substantial question of law is raised in the appeal for consideration, and the appeal lacks merit and it is dismissed. S.S.SATHEESACHANDRAN JUDGE vdv