IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 RSA.No. 1325 of 2009() ---------------------- A.S.NO.52 OF 2005 of SUB COURT, THODUPUZHA O.S.No.66 OF 2002 of MUNSIFF COURT, THODUPUZHA APPELLANT/RESPONDENT/DEFENDANT; ----------------------------------------- MATHEW @ KUNJOONJU, AGED 50 YEARS, S/O.MATHEW @ PAPPANKUTTY, MADATHIKANDATHIL HOUSE PETTANADU KARA, THODUPUZHA VILLAGE. BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT RESPONDENT/APPELLANT/PLAINTIFF: ----------------------------------- MYTHEEN, S/O.MEERAN, KANINICKAL HOUSE, PETANADU KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. ADV. SRI.P.P.THAJUDEEN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1325 of 2009 --------------------------------------- Dated this 02nd day of March, 2010 JUDGMENT Challenge is to the decree for mandatory injunction granted by the first appellate court directing appellant to construct a retaining wall to provide the lost lateral support to the property of respondent. Plaint A schedule is 25 cents belonging to the respondent as per Ext.A1, assignment deed No. 928 of 1977. Plaint B schedule is 13 cents belonging to the appellant and situated on the west of plaint A schedule. According to respondent, plaint B schedule lies at a depth of about 7 feet from plaint A schedule and on the further west of plaint B schedule is a paddy field lying at a depth of about 20 feet. Respondent would say that his property was enjoying lateral support from plaint B schedule. Alleging that appellant excavated earth from plaint B schedule even up to 2 feet from the western boundary of plaint A schedule, respondent filed the suit for decree for mandatory and prohibitory injunction. Appellant contended that plaint B schedule belonging to him is dry land and that there is no possibility of the earth sliding down. He denied that he excavated plaint B schedule in the way alleged by the respondent. Appellant took the stand that he has left more than 5 feet from the western boundary of plaint B schedule while removing earth from his property. Trial court was of the view R.S.A.No.1325 of 2009 2 that since respondent has not proved any damage due to the removal of earth from plaint B schedule he is not entitled to the mandatory injunction prayed for. However, decree for prohibitory injunction against further excavation was granted. Appellant did not challenge the decree for prohibitory injunction against him. Respondent took up the matter in appeal. First appellate court was of the view that respondent is entitled to get lateral support for plaint A schedule as a matter of natural right and hence in the light of evidence on record appellant has to construct a retaining wall and restore the lost lateral support to the property of respondent. That judgment and decree are under challenge in this second appeal urging by way of substantial question of law whether first appellate court was legally correct in granting decree for mandatory injunction where the remedy of respondent is only by way of recovering damages and when respondent has an alternative remedy apart from restoration of lost lateral support. It is also raised by way of substantial question of law whether in the light of sections 33 and 34 of the Indian Easements Act (for short, 'the Act') first appellate court was justified in granting relief as prayed for?. Counsel for respondent would support the judgment and decree of the first appellate court. 2. Every owner of the land in its original state is entitled to get lateral support from the adjascent land, that being the natural right guaranteed by section 7 of the Act. This court in K. J. Jacob Vs. R.S.A.No.1325 of 2009 3 Nandagopalan & Ors. (1983 KLT 95) has recognised that right of the land owner. It is stated that land owner who lost the lateral support is entitled to its restoration. Proof of actual damages is not required. Prospective danger is sufficient to seek restoration of lateral support (See C.P.Mammen Vs. Kunchathy Kesavan-1956 KLT SN.46). Hence, appellant cannot dispute the right of respondent have lateral support particularly on the facts and circumstances of this case where it is not disputed and evidence also revealed that plaint B schedule belonging to the appellant lies at a lower level from plaint A schedule belonging to the respondent and further that on the west plaint B schedule which is only 13 cents is a paddy field lying at a depth of about 20 feet. The Advocate Commissioner has reported the situation in Exts.C1 and C1(a) where it is stated that there was excavation in plaint B schedule at a depth of about 18 feet leaving a space of 2.5 feet from the western boundary of plaint A schedule. Respondent has a case that subsequent to the first visit of the Advocate Commissioner, on account of excavation done by the appellant a portion of the property has slid down. This is proved by Ext.C2, report of the Advocate Commissioner. Thus, on facts also first appellate court was justified in directing lateral support to plaint A schedule by construction of a granite wall as reported by the Advocate Commissioner. 3. It is no answer to say that respondent could sue for R.S.A.No.1325 of 2009 4 damages but no such relief is claimed. Assuming that respondent is not claiming damages for loss of lateral support, law does not say that he cannot therefore claim restoration of lateral support. I am also not inclined to think that claiming damages is an equally efficacious remedy so far as lost lateral support is concerned. Sections 33 and 34 of the Act also have no application since those provisions deal with disturbance of right of easement, while lateral support, I stated from section 7 and the decision of this court referred supra is a natural right so far as land in its unburdened state is concerned. It is submitted by learned counsel for appellant that decree of first appellate court was put into execution and that though the Advocate Commissioner had assessed the cost of construction of granite wall as around Rs.36,000/-, respondent is now attempting to recover more than the said amount which according to learned counsel, appellant is not liable to pay. That is not a matter which has to be decided in this proceeding. If the appellant has such a contention he has to raise that contention before the executing court as provided under law. 4. On going through the judgment under challenge and hearing counsel on both sides I do not find any substantial question of law involved in the second appeal. Accordingly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/