NAYARUKANDIYIL VINODAN and NAYARUKANDIYIL SHYLAJA v. RAJIMON and KAKKAT PUTHIYOTTIL NAZAR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 5TH DAY OF SEPTEMBER 2012/14TH BHADRA 1934** ## **RSA.NO. 1065 OF 2012 ()** **-------------------------------------AS.34/2009 OF SUB COURT, VADAKARA OS.63/2007 OF MUNSIFF'S COURT, VADAKARA** ## **APPELLANTS/AAPPELLANTS/PLAITIFFS:** **-----------------------------------------------------------** **1. NAYARUKANDIYIL VINODAN, AGED 38 YEARS S/O. KUMARAN, RESIDING AT UNIKKARANKANDY PADINHARE AMSOM PARAMBIL MUTTUNGAL AMSOM DESOM VATAKARA TALUK, KOZHIKODE DISTRICT KERALA STATE.** ## **2. NAYARUKANDIYIL SHYLAJA, AGED 40 YEARS** **D/O. KUMARAN, RESIDING AT UNIKKARANKANDY PADINHARE AMSOM PARAMBIL MUTTUNGAL AMSOM DESOM VATAKARA TALUK, KOZHIKODE DISTRICT KERALA STATE.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR** ## **RESPONDENTS/DEFENDANTS/DEFENDANTS:** **-------------------------------------------------------------------** ## **1. RAJIMON** **S/O. MUKUNDAN, SREENILAYM NADAKKUTHAZHA AMSOM PUTHUR DESOM, VATAKARA TALUK KOZHIKODE DISTRICT. KERALA STATE PIN-673101.** ## **2. KAKKAT PUTHIYOTTIL NAZAR** **S/O. ABDURAHIMAN** **NADAKKUTHAZHA AMSOM MEPPAYIL DESOM, VATAKARA TALUK KOZHIKODE DISTRICT KERALA STATE PIN-673101.** ## **BY ADV. SRI.U.K.DEVIDAS (CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No. 1065 of 2012 ==================================== Dated this the 05[th] day of September, 2012** ## **J U D G M E N T** Admit. 2. The following substantial questions of law are framed for a decision: (i) Whether the courts below are justified in dismissing the suit based on a claim for lateral support by prescription finding that there is no evidence to show the extent of support and at the same time, dismissing I.A. No.1546 of 2009 filed by the defendants to assess the support necessary and I.A. No.1653 of 2011 filed by the plaintiffs before the lower appellate court for the same purpose? (ii) Whether the courts below are justified in turning down a plea of prescription for lateral support to the plaint A schedule property from the plaint B schedule property opining that there was no evidence for the oldness of a cow shed (wrongly referred to as **R.S.A. No. 1065 of 2012** -: 2 :- “stable”) having been there in the property as accessory to the house which was accepted to be 34 years old? (iii) Whether the courts below are justified in not acting on Ext.A5(a), order by the regulatory authority restraining defendants from removing the earth from the B schedule property which is again assurance to the plaintiffs to have their lateral support? 3. Respondents appear through counsel. 4. Since a copy of the relevant records necessary for a decision of this Second Appeal are given to me by the learned counsel for the respondents, in view of the submission made by the counsel on both sides and the decision I propose to take in this appeal, it is not necessary to call for the entire records of the case. 5. Plaint A schedule measuring 13 Ares belongs to the appellants as per Ext.A1. Plaint B schedule situated on the east and north of the plaint A schedule – 53 cents belongs to the respondents as per Ext.B1. According to the appellants, the **R.S.A. No. 1065 of 2012** ## -: 3 :- plaint A schedule is situated at a higher level from the plaint B schedule and is enjoying lateral support from the plaint B schedule. It is the further case of the appellants that the respondent started removing soil from the plaint B schedule adjoining the plaint A schedule on 25.04.2007 which would affect the lateral support the plaint A schedule is enjoying from the plaint B schedule. Appellants filed O.S. No.63 of 2007 in the court of the learned Munsiff, Vadakara seeking a decree for prohibitory injunction. There was also a prayer for mandatory injunction to direct the respondents to provide lateral support to the plaint A schedule at portions where soil had already been removed. Later the plaint was amended to state that since the structures in the plaint A schedule are about 35 years old, the appellants have prescribed a right of easement for support from the plaint B schedule to the said structures also (invoking Section 15 of the Easements Act - for short, “the Act”). 6. The respondents resisted the suit contending that for construction of the house in the plaint B schedule it is necessary to remove soil from that property and that the Tahsildar has permitted removal of soil for the said purpose. They denied that removal of soil from the plaint B schedule property would affect **R.S.A. No. 1065 of 2012** ## -: 4 :- support to the plaint A schedule. They also contended that by putting up structures in the plaint A schedule, the appellants have caused additional burden on the plaint B schedule which the said property is not liable to bear. 7. The trial court found that though the house in the plaint A schedule was constructed sometime in the year,1962 and hence the Well adjacent to it must also have been constructed during that time but there is no reliable evidence to show that the cow shed was constructed in the A schedule beyond the statutory period prescribed under Sec.15 of the Act. On the premise that the structures put up by the appellants in the plaint A schedule have caused additional burden on the plaint B schedule, the rial court dismissed the suit. 8. The appellants challenged that judgment and decree in A.S. No.34 of 2009 in the Sub Court, Vadakara. The first appellate court has agreed with the finding entered by the courts below and dismissed the appeal. Hence this Second Appeal on the above substantial questions of law. 9. The learned counsel for the appellants contended that the trial and first appellate courts having accepted plea of the appellants that the house and Well situated in the plaint A **R.S.A. No. 1065 of 2012** ## -: 5 :- schedule were constructed sometime in the year 1962, finding of the said courts that there is no evidence to show when the cow shed was constructed cannot be accepted. According to the learned counsel, it is only probable that the cow shed was constructed in the plaint A schedule at the time the appellants or their predecessors-in-interest started residence in the plaint A schedule. It is argued that the plaint A schedule in its original state is entitled to get lateral support from the plaint B schedule as a natural right recognized under Sec.7(a) of the Act. It is also argued that since the structures in the plaint A schedule have oldness of more than 20 years, the appellants have prescribed a right of easement for support to those structures under Sec.15 of the Act. The further argument is that at any rate even if it is assumed that by putting up structures in the plaint A schedule the appellants have created additional burden on the plaint B schedule, the plaint A schedule is entitled to lateral support as a natural right in the condition it was, had not the structures been put up. 10. The learned counsel for the respondents contended that evidence revealed that there is a public road on the southern side of the plaint A and B schedules which is situated **R.S.A. No. 1065 of 2012** ## -: 6 :- almost 4 metres lower in level from the plaint A schedule and notwithstanding that there is no artificial support from the said road, there is no case that any portion of the plaint A schedule abutting that road has slid down. According to the learned counsel, the soil in the plaint A schedule is strong enough to withstand removal of soil from the plaint B schedule. The learned counsel has reiterated the contentions raised by the respondents in the trial court as to the oldness of the structures put up in the plaint A schedule and the additional burden those structures have created on the plaint B schedule. The learned counsel however submitted that the respondents are prepared to provide lateral support for the plaint A schedule with all the structures now existing thereon by constructing granite wall on the eastern and northern side of the plaint A schedule at the portion it abuts the plaint B schedule. The learned counsel submitted that after removal of the soil from the plaint B schedule such granite wall could be constructed. 11. Right for lateral support from the adjacent land has always been recognized as a natural right. In English Law, the right for lateral support was accepted as a natural right forming part of the bundle of rights known as “the right of property”. The ## **R.S.A. No. 1065 of 2012** ## -: 7 :- owner of the property had the natural right of support from the adjacent property so far as his own property remains in its natural state. **Davis v. Powell** (1921 L.J. Ch.40) states, “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”. ## Again in **Crow v. Mood** ([1971] 1 QB 77) it is held, “it is not an easement strictly so called because it involves the servient 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”. 12. The above view has been endorsed by the Indian courts as well in the various decisions. The above principle found statutory recognition and acceptance under Sec.7(e) of the Act which states that every owner of land has the right that ## **R.S.A. No. 1065 of 2012** ## -: 8 :- such land in its natural condition shall have the support naturally rendered by the subjacent and adjacent soil of another person. Therefore it is beyond dispute that the plaint A schedule situated at a higher level from the plaint B schedule is entitled to get lateral support by way of natural right from the plaint B schedule. 13. Then the question is what is the consequence of the plaint A schedule being burdened with structures? There could be no doubt that when the plaint A schedule is burdened with structures, that may cast additional burden on the plaint B schedule for providing lateral support to the plaint A schedule. The law on the point is clear that when the land is burdened with structures, lateral support can be claimed from the adjacent land only if the right is prescribed under Sec.15 of the Act. 14. It is certainly because of that, the appellants amended the plaint to state that the structures in the plaint A schedule are in existence for about 35 years. So far as the house and Well situated in the plaint A schedule are concerned, the trial court accepted plea of the appellants that those structures were in existence in the plaint A schedule even beyond the statutory period provided under Sec.15 of the Act. Dispute is **R.S.A. No. 1065 of 2012** -: 9 :- concerning oldness of the cow shed in the plaint A schedule. 15. It is revealed from Exts.C1 and C2 that the distance from the house in the plaint A schedule to the eastern boundary of the plaint B schedule is 7 metres while the distance to the north-western corner of the plaint B schedule is only 2.90 metres. It is also seen from Exts.C1 and C2 that the distance from the cow shed situated in the plaint A schedule to the eastern boundary of the plaint A schedule (western boundary of the plaint B schedule) is only 4 metres. 16. Though the learned counsel for the respondents has a contention that there is no possibility of lateral support to the plaint A schedule being affected by the removal of soil from the plaint B schedule, I am not inclined to accept that contention in view of Ext.C1. It is reported in Ext.C1 that the Advocate Commissioner found soil removed from portions of the plaint B schedule adjoining the plaint A schedule at a depth of 4.5 metres and at those portions, cracks were seen on the boundary of the plaint schedule A schedule likely to slid. That possibility is sufficient to justify apprehension of the appellants. 17. I stated that when the land is burdened with structures and if support is claimed for the land with the ## **R.S.A. No. 1065 of 2012** ## -: 10 :- structures thereon, appellants have to prove a right under Sec.15 of the Act and that so far as the house and well are concerned, it is in evidence that the house and the structures are put up beyond the statutory period prescribed under Sec.15 of the Act. I also stated that the dispute was only concerning oldness of the cow shed. Assuming that the cow shed was constructed within the statutory period under Sec.15 of the Act, still the plaint A schedule is entitled to the support it was enjoying from the plaint B schedule had it not been burdened with the cow shed. 18. Lord Tenterden has stated in **Wyatt v. Harrison** ([1832] 3 B & Ad. 871) thus: “It may be true that if my land adjoins that of another, and I have not, by building, increased the weight upon my soil, and my neighbour digs in his own land, so as to occasion mine to fall in, he may be liable on action”. Referring to the decisions in **Hamer v. Knowles** ([1861] 6 H & N, 454) and **Hunt v. Peake** ([1860] John 705), Kattyar on ## **R.S.A. No. 1065 of 2012** -: 11 :- the law of Easements and Licences (9[th] Edition) at 189 has stated: “Even if the pressure upon the adjoining soil has been increased by the modern buildings on the surface, still an action will lie if the soil would have sunk if there had been no buildings thereon”. The author states in page 190: “Similarly if land is subject to artificial pressure of buildings the owner must make his own arrangement of keeping up the foundations and his neighbour is not bound to support this artificial pressure as well, by his own land provided he does not commit any act which interferes with the natural support which it would otherwise have, if the land were not subject to this artificial pressure”. 19. This Court had occasion to look into that question. In **Narayanan v. Sankaran** (1971 KLJ 599) it is held that even ## **R.S.A. No. 1065 of 2012** ## -: 12 :- if a dominant owner puts up structures in the dominant heritage and thereby puts additional burden on the servient heritage the proposition that by substantial or material alteration of the dominant heritage resulting in additional burden on the servient heritage right of support to the dominant heritage even as it was in its original condition would also be lost cannot be accepted. Thus even if the cow shed in the plaint A schedule is constructed within the statutory period under Sec.15 of the Act the plaint A schedule is entitled to the support from the plaint B schedule, had not the cow shed been put up. 20. In the above view of the matter I am inclined to think that fining of the courts below that the appellants are not entitled to lateral support for the plaint A schedule is erroneous and is to be reversed. 21. The learned counsel made an undertaking on behalf of the respondents that the respondents will provide support to the plaint A schedule with all the structures it carries as of now by constructing granite wall with sufficient foundation on the side of plaint B schedule adjoining the plaint A schedule. That submission made by the learned counsel is accepted and recorded. **R.S.A. No. 1065 of 2012** ## -: 13 :- 22. But I cannot give a decree accordingly in this Second Appeal since it requires expert opinion as to the extent of support the respondents are to provide. Based on the opinion of an Expert the trial court has to decide what should be the width and height of the granite wall and its foundation sufficient to provide lateral support to the plaint A schedule as it exists now. The trial court has also to decide on the prayer for prohibitory injunction. 23. I am told that the respondents filed I.A. No.1546 of 2007 in the trial court to assess nature and strength of the soil in the plaint A and B schedules. That application was not pressed. In the first appellate court, the appellants filed I.A. No.1653 of 2011 to assess oldness of the soil which also did not find favour. Having regard to t the position of law which I have stated above and the undertaking made by the learned counsel for the respondents it is only appropriate that an Expert is appointed to report on the nature and extent of support required to be provided to the plaint A schedule from the plaint B schedule. I make it clear that notwithstanding dismissal of I.A. Nos.1546 of 2007 and 1653 of 2011 it will be open to any of the parties to move the trial court for getting the assistance of an Expert to ## **R.S.A. No. 1065 of 2012** ## -: 14 :- report on the nature and extent of support required from the plaint B schedule for the plaint A schedule in its present stage. 24. The substantial questions of law framed are answered accordingly. The Second Appeal is allowed as under: (i) Judgment and decree of learned Sub Judge, Vadkara in A.S. No.34 of 2009 and of learned Munsiff, Vadakara in O.S. No.63 of 2007 are set aside. (ii) It is found that the plaint A schedule in the state it is now (including the structures therein) is entitled to get natural support from the plaint B schedule and that the respondents are bound to provide such support to the plaint A schedule in its present state. (iii) The undertaking made by the respondents that they will provide sufficient lateral support to the plaint A schedule in its present state by constructing granite wall in the plaint B schedule is accepted and recorded. ## **R.S.A. No. 1065 of 2012** ## -: 15 :- (iv) The trial court is directed to appoint an Expert and get a report as to the nature and extent of support required to be provided to the plaint A schedule. (v) Based on that Expert opinion and after hearing both sides, the trial court shall pass a decree directing the respondents to provide lateral support from the plaint B schedule to the plaint A schedule. (vi) The trial court shall also decide on the prayer for prohibitory injunction. (vii) The trial court is directed to expedite its proceeding considering the grievance of the respondents that they want to put up building in the plaint B schedule. (viii) Parties are directed to maintain the present condition of the plaint A and B schedules ## **R.S.A. No. 1065 of 2012** -: 16 :- until further orders are passed by the trial court. (ix) Parties shall appear in the trial court on 27.09.2012. All pending Interlocutory Applications will stand dismissed. **THOMAS P. JOSEPH, JUDGE.** vsv