IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 RSA.No. 1212 of 2010() ---------------------- AS.16/2009 of D.C.& SESSIONS COURT,THODUPUZHA OS.120/2007 of MUNI-MAGI.COURT,THODUPUZHA .................... APPELLANTS/ RESPONDENTS-DEFENDANTS ------------------------------------------ 1. EPEN, S/O.CHACKO, KOZHIKOTTU HOUSE, MULAPPURAM KARA, NEYYASSERY VILLAGE. 2. BOBBY, S/O.EPEN, -DO-. BY ADV. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT(S): APPELLANT-PLAINTIFF ---------------------------------- CHACKO @ GEO, S/O.CHACKO, VARICKAMACKAL HOUSE, ALAKODE KARA & VILLAGE. ADV. SRI.C.K.VIDYASAGAR FOR R1 SRI.P.CHANDY JOSEPH FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1212 OF 2010 --------------------------------------------- Dated 17th February, 2011 JUDGMENT Defendants in O.S.120/2007 on the file of Munsiff's court, Thodupuzha are the appellants. Respondent is the plaintiff. Respondent instituted the suit for mandatory and permanent prohibitory injunction. Though respondent claimed mandatory injunction and also set up a claim for lateral support before the trial court, both the claims were given up during trial. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A4, B1 to B4, C1 to C2 (a) dismissed the suit. Respondent challenged the judgment before District Court, Thodupuzha in A.S.16/2009. Learned District Judge on re-appreciation of the evidence found that apprehension of the respondent is that excavation of earth will adversely affect the RSA 1212/10 2 southern boundary kayyala of plaint schedule property and finding that it is proved granted a decree restraining appellants from excavating soil beneath the southern boundary of kayyala of the plaint schedule property. It is challenged in the second appeal. 2. Learned counsel appearing for the appellants and respondent were heard. 3. Plaint schedule property of the respondent lies to the north of the property of the appellant. There is admittedly a kayyala demarcating the properties. Apprehension of the respondent was that if soil is to be excavated from the southern side of boundary kayyala, it would cause damages to his property and kayyala. At the same time claim for lateral support was given up before the trial court. First appellate court finding that there is RSA 1212/10 3 possibility of damages to the southern compound wall of the plaint schedule property if soil excavated beneath the kayyala granted a decree restraining appellants from excavating soil beneath the southern boundary of kayyala. 4. As rightly pointed out by the learned counsel appearing for the appellants when the respondent originally contended that excavation would cause damages to the southern kayyala evidently for loss of lateral support, that plea for lateral support was given up before the trial court. Hence based on the apprehension of loss of lateral support, a decree cannot be granted. Decree granted by the first appellate court is only restraining appellants from excavating soil “beneath the southern boundary of kayyala of plaint schedule property”. Appellants have no right to excavate RSA 1212/10 4 soil beneath the southern boundary of kayyala. At the same time they are entitled to remove soil from the chal which exists to the south of southern boundary kayyala of the plaint schedule property. Learned counsel appearing for the respondent submitted that respondent is not objecting removal of the soil from the chal for its proper use, but only removal of soil, so as to cause damages to southern boundary kayyala. In the nature of the decree granted by the trial court, I do not find any substantial question of law involved. It is made clear that by the decree appellants are not prevented from excavating soil from the existing chal for its proper use. At the same time, by such removal no damages shall be caused to the southern boundary kayyala and no excavation shall be made beneath the southern RSA 1212/10 5 boundary kayyala of the plaint schedule property. Appeal is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE. uj.