IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 SA.No. 93 of 1999(C) ------------------------------ A.S.NO.112/1991 of PRL.SUB COURT, IRINJALAKUDA O.S.NO.36/1990 of ADDITIONAL MUNSIFF COURT,IRINJALAKUDA .................... PETITIONERS/APPELLANTS IN S.A. --------------------------------------------------- 1. RAPPAI, SON OF PANANKOODAM THOMAS, KALLUR VILLAGE,DESOM, MUKUNDAPURAM TALUK. 2. MATHU, S/O.RAPPAI, IN -DO- -DO- BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADV.SRI.P.B.KRISHNAN SMT.M.M.TEENA RESPONDENT/ RESPONDENT IN S.A. ------------------------------------------------------- 1. LONAPPAN, S/O.PALATHINKAL OUSEPH, KALLUR VILLAGE,DESOM, MUKUNDAPURAM TALUK. *(DIED) *ADDL.R2 TO R9 ARE IMPLEADED *ADDL.R2: VISWANATHAN, S/O.VAIDYANATHA IYER, NENMANIKKARA MADHOM, NENMANIKKARA. *ADDL.R3: CHANDRAN, S/O.MUTHRATHIPARAMBIL MANIKIAN, CHITTISSERI. *ADDL.R4: ACHUTHAN, S/O. MANTHRAVALAPPIL KUTTAN, MADAVAKKARA. *ADDL.R5: JOSE, S/O. ALALONIKKAL AUGUSTINE, VATTANATHRA. *ADDL.R6: KUTTAN, S/O.KOVATHU KRISHNAN, NENMANIKKARA. *ADDL.R7: KARUNAKARAN, S/O.MUTHRATHIPARAMBIL MANIKIAN, CHITTISSERI. *ADDL.R8: PALANIKUTTY, S/O. KADUKAPPARAMBIL SANKU, CHITTISSERI. *ADDL.R9: LECHANAN, S/O.AYYANCHIRA KOCHAKKAN, PAZHAYI. *ADDL.R2 TO R9 ARE IMPLEADED AS THE REPRESENTATIVES IN INTEREST OF THE SOLE RESPONDENT AS PER ORDER DATED 18/1/11 IN I.A.NO.976/08 R2 TO R9 BY ADV. SRI.RENJITH THAMPAN SMT.P.A.ANITHA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.93/1999 ORDER ON C.M.P.NO.269/1999 IN S.A.NO.93/1999 DISMISSED 04/03/2011 SD/- P.BHAVADASAN,JUDGE /TRUE COPY/ P.A.TO.JUDGE sts P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 93 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2011. JUDGMENT The plaintiffs are the owners of plaint A schedule property and the defendant of B schedule property. B schedule property lies on the western side of plaint A schedule property. When the plaintiffs found that the defendant is attempting to remove mud from his property and start a fishing farm thereby causing threat to the lateral support and other features of their property, they laid the suit against the defendant for necessary reliefs. The defendant replied that he had no intention to start a fishing farm as alleged and also that the soil was hard enough so that no lateral support of the plaintiffs' property would be lost by any sort of digging done by the defendants. 2. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A2(a) S.A.93/1999. 2 from the side of the plaintiffs. The defendant examined himself as D.W.1. Ext.C1 is the commission report and Ext.C2 is the rough sketch. On the materials made available, the trial court found the complaint of the plaintiffs to be true and accordingly a decree was granted, which reads as follows: “In the result, the plaintiff is given a decree for permanent prohibitory injunction restraining the defendant from digging up the plaint B schedule property in such a manner so as to cause water percolation and soil erosion in the plaint a schedule property and to loose the lateral support of the same.” 3. The aggrieved defendant went up in appeal as A.S. 112 of 1991 before the Sub Court, Irinjalakuda. The said court concurred with the trial court in its finding, but thought it unjust to grant an absolute order of injunction and therefore modified the decree as follows: “In the result this court is reasoned to allow this appeal to the limited extent of modifying the S.A.93/1999. 3 decree of the lower court. In modification of the decree of the lower court the defendant is perpetually restrained from removing soil from the plaint B schedule property from within a distance of 3 meters from the boundary of the plaint A schedule properties.” 4. It is the modified decree that is taken objection to by the plaintiffs in this Second Appeal. 5. Notice is seen issued on the following questions of law: “(A) Is the lower appellate court right in law in thinking that the decree of the trial court is unspecific and ambiguous warranting interference and modification? (B) In the nature of the apprehended invasion into the plaintiffs' rights in relation to their 'A' schedule property, is not the decree of the trial court valid and proper? ( C) Do not the terms of the trial court decree sufficiently protect the rights of the plaintiffs and the defendant in relation to their respective S.A.93/1999. 4 properties on the facts and circumstances of the case? (D) Is not the modification made to the trial court decree by the lower appellate court, arbitrary and unsupported by any data which will ensure no damage to the plaintiffs' property?” 6. Learned counsel appearing for the appellants pointed out that the lower appellate court had no data before it nor did have the expertise to come to the conclusion that the digging of land from a distance of three meters will not cause any danger to the property of the plaintiffs. Learned counsel pointed out that even going by the commission report, it is evident that the soil at the site is loose and therefore the lower appellate court should have based its conclusion on some material before modifying the decree. The lower appellate court, according to learned counsel, was not justified in interfering with the judgment and decree of the trial court solely on the ground that since injunction is granted regarding the entire property, that will cause hardship to the defendant. S.A.93/1999. 5 7. Learned counsel for the respondents on the other hand pointed out that the trial court decree completely prohibits him to do anything in his land and that will be unjust and improper and he will not be able to utilize his land for any purpose other than cultivation. 8. The questions of law that arise for consideration are questions A and D. 9. The decree of the trial court has already been referred to. Both the courts below have concurrently found that the digging and removing of soil from plaint B schedule property will adversely affect plaint A schedule property. As rightly pointed out by the learned counsel for the appellants, it is not possible to understand the basis on which the lower appellate court came to the conclusion that the safe distance is 3 meters. There was absolutely no evidence before the lower appellate court to come to such a conclusion. One would have expected the defendants atleast to adduce some evidence if a decree had to be modified. Without any basis, the distance has been S.A.93/1999. 6 determined by the lower appellate court. One must remember that the soil is loose at the place and much would depend upon the depth to which the defendant would dig. Several other factors will have to be considered before determining the distance. There was no attempt on the part of the lower appellate court to procure any acceptable data before the decree was modified and in the absence of any material, the lower appellate court is absolutely unjustified in modifying the decree of the trial court. In the result, this appeal is allowed, the judgment and decree of the lower appellate court is set aside and the decree of the trial court is restored. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.