Kalyani vs Bhaskaran and Another

Chettur Sankaran Nair, J.—This Appeal by the Plaintiff is directed against the judgment and decree of the Courts below, rejecting her claim for lateral support Plaintiff runs a school since 1968 in Survey No. 1054 of Kandanassery Village, described as A scheduled property in the plaint. Defendants own lands to the west and north of Plaintiff''s property, described as B scheduled property in the plaint Plaintiff submits that Defendants had been making large scale excavation of earth from their property, cutting earth in a perpendicular. As a result of this, Plaintiff''s property has lost lateral support available from the adjacent land of Defendants, submits Plaintiff. Hence a Suit for mandatory and prohibitory injunction was filed.

Defendants admitted removal of earth, but contended that Plaintiff lost lateral support, if at all, by putting pressure on her land by heaping earth on the playground, and not by any act of the Defendants. They submit further that Section 7 of the Indian Easement Act, stands in the way of Plaintiff claiming lateral support, after subjecting her land to artificial pressure.

The suit was dismissed by the trial Court. On Appeal (A.S. 2/81), the District Court, Trichur remanded the suit to the trial Court to ascertain, if:

Plaintiff had imposed additional burden on A schedule property by raising the level of the playground at the north-western corner, touching B schedule property.

The order of remand was challenged before this Court in a Civil Miscellaneous Appeal, but unsuccessfully. The trial Court then proceeded with the Suit, and appointed an Advocate Commissioner. The Commissioner filed Ext. C-16 Report dated 10th December 1984 and Ext. C-17 Plan. He noted that plaint A scheduled property was not over-burdened by putting any additional quantity of earth on it. According to him, the playground was levelled by Plaintiff, by taking earth from the north-western part of her land, and spreading it over the south-western part of the land.

The trial Court dismissed the Suit, holding that the playground had been levelled, and that:

Plaintiff has imposed additional burden over her own property by constructing School and playground in the year 1968, whereby the lateral support is lost.

The Plaintiff appealed, but to no avail. The District Judge observed:

It is clear that Plaintiff had over-burdened plaint A scheduled property for the purpose of levelling the playground, touching B scheduled property.

Counsel for Appellant submits that the Courts below misdirected themselves on facts and law, and that the trial Court enlarged the scope of remand, making a roving enquiry, as in an open remand. Counsel states that the scope of remand was not correctly appreciated by the Courts below. He relied on the decisions in C.N. Ambrose v. Meenakshy 1953 T.C. 111. Chacko v. Varkey 1962 KLT 452, Achuthan v. Raman and Ors. 1979 KLT 119 and George Kutty v. Ouseph Varkey 1990 (1) KLT 452 to contend that the trial Court cannot travel beyond the order of remand, or enter on alien pastures.

It is settled law that the trial Court will have no jurisdiction to reopen issues decided by it, unless so directed by a superior Court, and such consideration can only be to the extent and in the manner indicated by the appellate Court. Consideration on remand, is thus bounded by the terms of the order of remand itself. If it is an open remand, all the issues are open to fresh consideration-not otherwise.

In the case on hand, the remand was limited to one question, namely, whether the Plaintiff had burdened plaint A scheduled property at its north-western corner, touching plaint B scheduled property. The trial Court said:

Now it has come out in evidence that the Plaintiff herself had imposed additional burden over her own property by constructing the school and playground.

The appellate Court stated:

I agree with the lower Court that Plaintiff over-burdened plaint A scheduled property near plaint B scheduled property.

There is a certain bluntness in the findings, particularly in that of the Munsiffs. But, when it is said that the property is burdened, it means that the property is burdened. On its north-western side where it touches plaint B Scheduled property also. May be, consideration should have been specific, in terms of the order of remand, to the north-western boundary. Saying something more, was exceeding the scope of remand, according to counsel. I do not agree. The question referred was answered, and nothing more was done. In doing that, the trial Court did not write on the dotted line. Then, it did not stray far, either. Therefore, the contention that the scope of remand was exceeded, has to be rejected.

The next question for consideration is whether the Plaintiff had lost the right of lateral support rendered by subjacent and adjacent soil, by her own act of changing the natural state, of her land. The rights of a land owner include the right of support naturally rendered to his/her land by subjacent and adjacent soil; vertically by subjacent strata, and laterally by the adjacent soil. This is the right to avail of the support of adjoining land, or more precisely the right to be protected from the removal of such support. This is a natural right, and a right in property, though some statutory enactments catalogue this right, under easements. The rights of the neighbouring owner over his land are restricted to this extent.

Such a right is basic to the enjoyment of property and without it, the right of property will be illusory. In its natural state, all land forms an integrated whole, and impact at one point will make its impact at other points as well. In many a way, land has its sway over the life of man. He needs land to raise food crops; he needs land to draw life sustaining water from it; he needs it for building shelter against the sun, the rain and the winds. Community interests prevail in this area. The rights of an individual owner of land is subject to the right of lateral support available to his neighbour. This right is available to the neighbouring; owner, only so long as he keeps his land in its natural state. If he subjects it to additional pressure or excavation so as to alter its natural state, then the right of support to that extent will be lost. At once, natural state is not static state. Changes there will be, and changes there are bound to be. Land may have to be ploughed; it may have to be terraced; it may have to be prepared for raising crops. Such activities will not be regarded as making changes in the natural state. Expressions like "artificial pressure� and �excavation� occurring in Section 7(e) of the Easements Act have to be understood so. Excavation in a small measure, or imposing a negligible burden will not change the natural state of land. At times, to preserve land in its natural state, it has to be terraced. A mountain slope has to be terraced if soil erosion or landslide is to be prevented. The slopes of any mohtane region, be it the Himalayan ranges, or ranges of Western Ghats, reveal this. Such necessary �dressing� of land does not change its state. Law must change with the requirements of society and adapt itself to new modes of life. The Judicial Committee of the Privy Council observed in A.G. of Southern Nigeria v. John Holt and Co. (1915) A. C. 599.

The law must adapt itself to the conditions of modern society and trade, and there is nothing in the purposes for which the easement is claimed inconsistent in principle with a right of easement as such.

The view that I have taken, accords with precedent and authority. Regarding the nature of the rights, it is observed in ''Law of Real Property''- David J. Hayton. (Page 400):

In addition to his rights over his own land, every land owner has a natural right to support, i.e., a right that the support for his land provided by his neighbour''s land should not be removed, whether directly or by causing the subsoil to liquefy...the owner of the surface has a natural right to have it supported by the subjacent soil, unless this right is excluded by clear words or necessary implication in some statute or agreement. This natural right, however, extends only to land in its natural state....

To the same effect are the observations in Cheshire and Burn (13th Edition Page 499). It reads:

Thus ''ex jure nature'', an owner has a right to so much support from his neighbour''s land as will support his own land, unencumbered by buildings, at its natural level... Such natural rights differ from easements in at least two respects-their existence does not depend upon some form of grant, arid they cannot be extinguished by unity of session.

R.E. Megary and H.W.R. Wade (Law of Real Property-4th Edn. Page 814) highlight the distinction between an easement and a natural right:

The most obvious difference between an easement and a natural right is that a natural right exists automatically but an easement must be acquired. A ''natural right'' is, in fact, simply a right protected by the law of tort, i.e., the right to damages or an injunction for nuisance. In addition to his rights over his own land, every land-owner has a natural right of support. This is often described as a man''s right to have his land supported by his neighbour''s land, but it is more accurately described as a right not to have that support removed by his neighbour; for no action lies when the support is removed by natural causes, such as the action of water lying in a graval pit.

In Kappel v. Bailey (1834) 2 My. and R. 517. Lord Brougham observed:

There are certain known incidents to property and its enjoyment, among Ors. , certain burdens wherewith it may be affected, or rights which may be created and enjoyed over it by parties other than, the owner... But it must not therefore be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner;....

Lord Denning describes the right to lateral support, very graphically in Crow v. Wood (1971) 1 Q.B. 77.

It is not an easement strictly so called because it involves the servant owner in the expenditure of money. It was described by Gale as a �spurious kind of easement�. But it has been treated in practice by the Courts as being an easement....

In Davis v. Powell 1921 L.J. Ch. 40, it was observed:

A proprietor of land has a right to support of it, not as an easement, but as an ordinary right of property necessarily and naturally attached to the soil.

It is thus clear that in English Law the right of lateral support was accepted as a natural right and as a right forming part of that bundle of rights known as ''the right of property''. The property rights of a landowner, are subject to the rights of his neighbour, or to the right of the neighbour not to have the support to his land withdrawn, as long as his land remains in its natural state.

The Courts in India have endorsed the view taken by English Courts. This Court had occasion to consider the nature of the right in K.J. Jacob v. Nandagopalan and Ors. 1983 KLT 95, Ramakrishnan v. Devassy 1988 (2) KLT 365, Narayanan v. Sankaran 1971 K.L.J. 599, Gopalakrishna Panicker Vs. Thirunakkara Devaswom, and in Mathew v. Gopalakrishnan Nair 1991 (1) KLT 632. Except for the last mentioned case, which strikes a different note, all the other decisions uniformly hold that a landowner has a right, not to have the lateral support afforded to him by his neighbour''s land, withdrawn. Similar views were taken in A.S. Minus v. E.F. Davey AIR 1933 Rang. 18, Venkatareddy v. Kurasani Koti Reddy AIR 1947 A.P. 81, Rasiklal Manilal Bhatt and Others Vs. Savailal Hargovindas Sur, , Fidaalli Mulla Kurbanalli Vs. Akbaralli Kadarbhai, Bengal Provincial Railway v. Rajnikant AIR 1938 Calcutta 564, In re Athi Ayyar AIR 121 Mad 322, Bhagwan Das Vs. Bibi Iqbal Sultan Banu Shahar Khurshed Begam, and P. Susheela Amma v. Hira Lal and Anr. 1988 (1) CCC 550. These decisions approve the statement of law in Charls Dalton v. Henry Angus and Co. (1881) 6 A.C. 740, consistently followed by Courts in England. Lord Selbourn said:

Owner of land has a right to support from the adjoining soil, not a right to have the adjoining soil remain in its natural state; but a right to have the benefit of support, which is infringed as soon as, and not until, damage is sustained in consequence of the withdrawal of that support.

In this profile, the case on hand has to be examined. The Courts below found that land was subjected to artificial pressure, relying on Ext. C-16 report. All that the Commissioner stated in Ext. C-16 was that earth taken from the northeastern part of A scheduled property, was put on the southwestern portion for levelling the ground (District Judge-Page 3, line 43 of judgment). The Commissioner clearly stated that the Appellant had not over-burdened her land. The core question is, whether levelling puts the land under artificial pressure. A realistic approach must be adopted in considering a question like this. On the evidence and even on the basis of the findings entered by the Courts below, if plaint A schedule property is viewed in its integrity, no pressure had been added. All that was done, was to take earth from the north and north-eastern portion, and put it in the south-western portion, that too, not in large quantities. In answer to question No. 3, Commissioner stated in Ext. C-16 that,

Plaintiff lowered the level of her property on her north-western boundary adjoining plaint B schedule property.

If so, instead of adding pressure at the site where lateral support is claimed, Plaintiff reduced pressure by removing earth. Support claimed is for ''Tak'' 2 and 3, where the playground lies. Plaintiff lost lateral support, not by adding pressure to her land, but by the Defendants cutting the slopes at the boundary, in perpendicular and removing sizeable quantities of earth. The evidence of P.W. 1 shows that the drop at the perpendicular was twentyseven feet. This is not denied by the Defendants. The evidence of first Defendant as D.W. 1 is to the effect that a tree standing on plaint A scheduled property, fell down when earth was removed by him. This suggests that lateral support was lost, by Defendant excavating his lands and not Plaintiff adding artificial pressure to her land. Answer of the Commissioner to question 3 in. Ext. C-16, also lends support to this view. No additional weight was imposed, though perhaps the distribution of weight on the surface might have assumed a slightly different pattern. Levelling which could be described as resurfacing, does not put the land under additional pressure, by any realistic standard. This is particularly so, when any appreciable quantity of soil has not been put on the land. All laws, as they must, should take stock of the realities of life. Natural state does not imply a state where for all times, the amount of soil at all points, remain the same. If such were the law, then doing anything on land would amount to an alteration of its natural state. That cannot be. It must be remembered that land goes down in depth immeasurably, and that removal of a certain quantity of earth from one end and putting it at Anr. end, cannot change the natural state or equilibrium of land. So viewed, taking, soil (that too without causing the earth to cave in) from the northern and north-western portion of plaint A scheduled property, and putting it over the south-western portion for levelling the ground, does not amount to alteration of the natural state. The Courts below misdirected themselves in law, in equating any change in the surface of land, to a change in the natural state of land. They misdirected themselves on facts, too in denying lateral support to Appellant, when loss of lateral support was due to acts of excavation by Defendants and not on account of the Plaintiff.

Therefore, the judgment and Decree of the Courts below are set aside. There will be a perpetual prohibitory injunction restraining Defendant-Respondents, from removing soil from plaint B scheduled property so as to affect the lateral support available to plaint A scheduled property. There will also be a mandatory injunction directing Defendant-Respondents to restore plaint B scheduled property to its original state, at points numbered 11, 12 and 13 in Ext. C-2 plan.

The Second Appeal is allowed. Parties will bear their respective costs.

I place on record my appreciation of the help rendered by Shri N. Subramanian who appeared as Amicus Curiae and addressed the Court in great detail.