KUTTAPPAN Vs. MEENAKSHI

JUDGEMENT

(1.) The defendant is the appellant. Concurrent decision rendered by the courts below decreeing the suit in part in favour of the respondents/plaintiffs declaring that they are entitled to have lateral support from the property of the appellant/defendant and also restraining the defendant by a permanent prohibitory injunction from causing injury to such lateral support by removing sand from his property, with further directions to construct a supporting wall on the boundary of the plaintiff's property as specified, to undo the mischief to the extent the lateral support had been impaired, is challenged in the appeal. Though the plaintiffs have claimed for a mandatory injunction for the status quo ante before the removal of the lateral support to their property as canvassed for, the trial court granted that relief only to the extent of directing the defendant to construct a protection wall adjacent to his property, that too, as identified by the advocate commissioner in his report and sketch. First appellate court, negativing the challenges raised by the defendant in his appeal against the trial court confirmed it without any modification.

(2.) Before me, the main thrust of challenge pressed into service by the learned counsel to assail the concurrent decision rendered by the courts below as indicated above is two fold. By removal of the soil from the property of the appellant/ defendant, it is submitted by the counsel, no lateral support is lost to the property of the plaintiffs. The decree was granted solely on the basis of Ext.C1 report and Ext.C1(a) plan collected by the advocate commissioner who was not an expert to determine lateral support or to express any opinion over the same. No expert opinion was tendered or taken by the court with reference to the properties involved to consider whether the claim for lateral support raised by the plaintiffs deserve any merit. The decree was granted solely on some assumptions, primarily, based on the report of the advocate commissioner and as such it is unsustainable under law. It is submitted by the counsel there is no damage to the property of the plaintiffs consequent to the removal of sand from the property of the defendants, for the last six years, after passing of the decree by the trial court, and that circumstance, it is contended, is relevant in showing that the plaintiffs have no lateral support to their property from that of the appellant/defendant.

(3.) After going through the judgments rendered by both the courts below, I find no merit in the submissions made by the counsel to assail the decree granted in favour of the respondent/plaintiff. There is no dispute regarding the title and identity of the properties claimed by the plaintiffs to which lateral support is claimed from the property of the defendant. The defendant has removed soil from his property close to and adjoining to the property of the plaintiffs is also not a matter of controversy. Over and above seeking the assistance of the court in deputing an advocate commissioner to conduct a local inspection over the properties and getting of Ext.C1 report and C1(a) plan to establish the reliefs canvassed, the plaintiffs examined three witnesses including the advocate commissioner as PW1 to PW3. PW1 is the second plaintiff. PW2, the advocate commissioner and PW3, a close neighbour.