IN THE HIGH COURT OF KERALA AT ERNAKULAM RSA.No. 201 of 2010() 1. SALI MATHEW, ... Petitioner 2. K.M.MATHEW, Vs 1. C.K.KURIAN, ... Respondent For Petitioner :SRI.M.P.MADHAVANKUTTY For Respondent : No Appearance The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :18/03/2010 O R D E R THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.201 of 2010 --------------------------------------- Dated this 18th day of March, 2010 JUDGMENT
The second appeal arises from judgment and decree of learned Additional District Judge, Kottayam in A.S.No.102 of 2005 confirming judgment and decree of learned Munsiff, Vaikom in O.S.No.434 of 2000. That was a suit filed by the respondent seeking lateral support for his property from the adjoining land belonging to the appellants but, calling it a right of easement by prescription. It is not disputed that plaint A schedule item No.1 belonged to the respondent as per settlement deed No.3005 of 1994 which is now a rubber plantation and that property on the north of item No.1 belonged to the appellants. It is also not disputed that plaint A schedule item No.1 is lying at a higher level from plaint A schedule item No.2 belonging to the appellants by about 5 feet. While so, appellants started excavation of earth from their property on the north. Respondent complained it to the local Revenue Divisional Officer and Ext.B1, agreement was entered into between the parties as per which appellants were to provide lateral support for plaint A schedule item No.1 in the manner stated therein. It is the case of respondent that even after Ext.B1, appellants in violation of terms and conditions of the agreement excavated earth from plaint schedule item No.2 which resulted in further loss of lateral R.S.A.No.201 of 2010G support for their property and which resulted in a portion of the compound wall sliding down resulting in loss of about 5,000/- to the respondent. Hence the suit for declaration and mandatory injunction to direct appellants to restore lateral support by putting up granite retaining wall. Appellants resisted denying the allegations in the plaint and contending that parties are bound by Ext.B1, agreement. If at all there is any violation of that agreement remedy of respondent is to enforce that agreement and not to sue for declaration and mandatory injunction. They denied that there was any violation of terms and conditions of Ext.B1, agreement. Trial court held that act of the appellants resulted in loss of lateral support for plaint A schedule item No.1 and hence appellants are able to restore it. Accordingly declaration and mandatory injunction were granted. First appellate court refused to interfere with that finding, judgment and decree. Hence the second appeal at the instance of defendants raising by way of substantial questions of law whether in the light of Ext.B1, agreement respondent could claim right of easement as set up in the plaint and whether trial court was justified in directing construction of retaining wall. Learned counsel for appellants would contend that Ext.B1 being an agreement entered into between the parties, rights and liabilities should flow from that agreement and if at all there is a violation, remedy of respondent is to enforce the same. Learned counsel has taken me through Exts.C1 to C2(a) and the evidence of R.S.A.No.201 of 2010G PW2, Engineer who inspected the properties and assisted the commissioner in preparing Exts.C1 and C1(a).
2. Right of lateral support to the property is not a right of easement but is an incidence of proprietary title and hence a natural right protected under section 7 of the Easements Act. No matter respondent has described that right as an easement by prescription but, what is meant is the right to get lateral support for plaint A schedule item No.1 which is situated at a higher level from the property of appellants. Claim made by the respondent is to enforce his natural right. The Division Bench of this court in C.P.Mammen Vs. Kunchathy Kesavan (1956 KLT SN 46) has held that to seek restoration of lateral support it is not necessary that owner of the land must have actually suffered damages. Even in the case of apprehended damages suit of restoration of lateral support would lie. In K.J.Joseph Vs. Nandagopalan & Ors. (1983 KLT 95) it has been held that land owner is entitled to get lateral support for his land from the adjoining land and that when that right is infringed remedy of the person threatened with injury is to seek restoration of lateral support. The same view has been taken by this court in Ramakrishnan Vs. Devassy (1988(2) KLT 365). As such right of respondent to get restoration of lateral support for A schedule item No.1 if it is lost cannot be ruled out.
3. So far as the contention of appellants based on Ext.B1 is R.S.A.No.201 of 2010G concerned, that agreement is dated 23-02-2000 and entered into between the parties following the complaint preferred by the respondent before the Revenue Divisional Officer alleging excavation of earth from plaint A schedule item No.2 and seeking restoration of lateral support. The Village Officer has reported in Ext.B2 that earth has been removed from plaint A schedule item No.2 at a length of 75 meters, depth of 7 meters and up to a distance of about 1 meter from the boundary of plaint A schedule item No.1. As per Ext.B1, agreement appellants were to leave a slope of 10cms for every 1 meter while removing earth from their property. In Ext.C1, report of the Advocate Commissioner taken immediately after institution of the suit, Commissioner has reported that boundary wall of the respondent is quite old. According to the respondent even after Ext.B1, excavation in an unbridled manner continued resulting in a portion of the compound wall of plaint A schedule item No.1 collapsing. Exts.C2 and C2(a) are the report and plan obtained subsequently. PW2, Engineer inspected the properties and assisted the advocate Commissioner. Ext.C2 would show that a portion of the compound wall has slide down (a development after Ext.C1 report). It is also reported in Ext.C2 that up to a depth of about 9-10 meters from plaint schedule item No.1, further excavation has been effected. That means, there was excavation at further depth even after Ext.B1, agreement and Ext.C1, report. Learned counsel has an argument that Ext.B1 does not prohibit R.S.A.No.201 of 2010G the appellants from further excavation at further depth. But reading Ext.B1, I am unable to accept that contention. There is nothing in Ext.B1 which enabled the appellants to excavate at further depth than done up to a depth of 7 meters already done. There is merit in the contention of respondent that there was violation of Ext.B1, agreement.
4. It is also revealed from the report of PW2, Engineer that the precautions already taken by the appellants was not sufficient to provide lateral support for plaint A schedule item No.1. PW2 has given nature of soil which is found to be too loose. It is in the above circumstances that PW2, Engineer has opined that construction of retaining wall is required to provide lateral support for plaint A schedule item No.1.
5. It is not a question of enforcement of Ext.B1 or, respondent claiming damages for violation of the terms and condition of Ext.B1. I stated that the safeguard appellants were to take as per Ext.B1 is found to be insufficient by PW2, the Engineer. Humphries Vs. Brogden (1850) 12 QB 739) states that right for lateral support stands as natural justice and is essential to the protection and enjoyment of the property in the soil. That right of the respondent has to be protected.
6. In the courts below appellants had a case that construction of compound wall by the respondent has created additional burden on R.S.A.No.201 of 2010G plaint schedule item No.1 and hence he is not entitled to get lateral support from item No.2. So far as that contention is concerned, Ext.C1 shows that the compound wall is pretty old. Even if it is assumed that item No.2 has been further burdened by construction of compound wall, if the act of the appellants would result in sinking of item No.1 even in the absence of the compound wall, respondent would be entitled to get lateral support as a natural right. On the facts and circumstances of the case and considering the position of law as stated above, I am satisfied that decree of the trial court as confirmed by the first appellate court is legal and proper and no substantial question of law is involved.
Resultantly the second appeal is dismissed in limine.
THOMAS P JOSEPH, JUDGE Sbna/