KARUNAKARAN PILLAI Vs. KUNJUMON ALIAS SAMUEL

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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 under Section 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.