Karunakaran Pillai and Sarasamma vs Kunjumon '' Samuel and Santhosh Kumar

M. Sasidharan Nambiar, J.—Plaintiffs in O.S. 3 of 1997 on the file of Munsiff Court, Punalur are the Appellants. Defendants are the Respondents. Appellants instituted the suit seeking a decree for permanent prohibitory injunction restraining the Respondents from escavating item No. 2 of the plaint schedule property belonging to them contending that item No. 1 of the plaint schedule property belonging to the Appellants, have lateral support from item No. 2 of the plaint schedule property belonging to the Respondents, which lies immediately to the south of item No. 1 of the plaint schedule property, on the foundation that item No. 1 is on a higher level and item No. 2 is on a lower level and the property is slopping from the north to south. Respondents resisted the suit contending that the two properties are having a level difference of about six feet only and the house in item No. 1 of the plaint schedule property was expanded and structures like Bath room, Cow-shed and latrine were constructed five years back ad thereafter land was levelled taking soil from the northern side of item No. 1 of the plaint schedule property and item No. 1 of the plaint schedule property is lying at a higher level of 15 feet than item No. 2 after levelling the land and properties have top soil of only one foot thickness in the natural form and the boundary wall made of jungle stones on the southern side of item No. 1 slided during monsoon and it was due to the weak nature of the construction and Appellants are not entitled to the lateral support as sought for.

Learned Munsiff, on the evidence dismissed the suit finding that Appellants are not entitled to the lateral support sought from item No. 2 of the plaint schedule property to item No. 1 of the plaint schedule property. Appellants challenged the judgment before Sub Court, Kottarakkara in A.S.1 of 2001. Learned Sub Judge on re-appreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

When the appeal came up for admission, notice was ordered to the Respondents before admission and records were called for. Respondents appeared.

Learned Counsel appearing for Appellant was heard. The argument of the learned Counsel is that first appellate court omitted to take note of the fact that the compound wall to item No. 1 of the plaint schedule property was constructed on the boundary and it was not constructed on any foundation and it has not added any additional pressure in item No. 1 of the plaint schedule property and therefore finding of the first appellate court that due to the additional pressure created by the construction of the compound wall, item No. 1 of the plaint schedule property is not entitled to lateral support is not sustainable. Learned Counsel also pointed out that trial court has found that five feet width of land was left unexcavated from item No. 2 of the plaint schedule property and if the suit is dismissed, Respondents may even remove that soil and it would result in loss of lateral support and therefore the decree is to be set aside. Learned Counsel also relied on the decisions reported in Kalyani V. Bhaskaran 1993 (1) KLT 415 and distinguished the decision in Mathai v. Kuttan Gopalan 2001 (1) KLT 20, page17.

On hearing the learned Counsel, I do not find any substantial question of law involved in the appeal. It is true that item No. of the plaint schedule property belonging to the Appellants lies on the north and item No. 2 of the plaint schedule property belonging to the Respondents lies immediately to its south and item No. 1 is lying on a higher level compared to item No. 2 of the plaint schedule property. The question is whether the Appellants are entitled to lateral support for item No. 1 of the plaint schedule property from item No. 2 of the plaint schedule property. Though the argument of the learned Counsel is that due to the level difference and for the reason that the property is lying on a slope from north to south, item No. 1 should get lateral support from item No. 2 of the plaint schedule property belonging to Respondents. True, when item No. 1 is on a higher level and item No. 2 is on a lower level adjacent to item No. 1, normally item No. 1 should have lateral support from item No. 2. But as rightly found by the courts below, if Appellants have burdened item No. 1 with structures, such lateral support for the additional pressure imposed on it could only be claimed as provided u/s 15 of Indian Easement Act. Though the learned Counsel vehemently argued that construction of a compound wall on the boundary of item No. 2 of the plaint schedule property will not cause any additional burden especially when it was not constructed on a foundation, Ext.C1 to C6 report and plan submitted by the Commissioner establish that in addition to the compound wall separating item No. 1 from item No. 2 of the plaint schedule property, Appellants have constructed a residential house, a cow-shed, bathroom and a latrine in item No. 1 of the plaint schedule property. It was specifically pleaded by the Respondents in the written statement that Appellants have constructed these structures and expanded the house five years back. It is therefore absolutely clear that Appellants have imposed additional burden on item No. 1 of the plaint schedule property. In such circumstances, Appellants cannot claim lateral support for the additional pressure imposed on item No. 1 of the plaint schedule property from item No. 2 of the plaint schedule property unless they establish a right of easement by prescription. There is no case that Appellants have prescribed a right for lateral support from item No. 2 for the additional pressure imposed by construction of the house, cow-shed, bathroom and latrine in item No. 1 of the plaint schedule property. In such circumstances, courts below rightly found that Appellants are not entitled to the decree claimed. Appeal is dismissed.