NARAYANAN Vs. SANKARAN

JUDGEMENT

(1.) The courts below have concurrently decreed the suit for mandatory injunction compelling the defendant in the suit to fill up a trench that he has dug on the boundary of his property immediately adjoining the plaintiff's property. The dispute concerns the right of lateral support by the adjacent and subjacent soil in regard to the properly of the plaintiff. Admittedly the property belonging to the plaintiff is at a higher level than the property of the defendant. About the actual difference in level there is dispute. The Commissioner has noted that the difference is If feet though the plaintiff's case is that it is very much higher. On the boundary separating the plaintiff's property from the defendant's the plaintiff has paved the mattom (embankment) with laterite stones. It is referred to in the judgment as putting up of a wall I do not think the evidence in the case justifies this description. The embankment itself was formed by raising that portion. Plaintiff's property was originally paddy land, but now only a portion of it is such and the portion adjoining the defendant's is the raised embankment whereon coconut trees stand. Before the suit the defendant is alleged to have dug a trench on the northern most boundary of his land adjoining the property of the plaintiff. As a result of this the laterite stones paved on the embankment are set to have been displaced and the embankment is said to have collapsed due to subsidence of soil. Though in this suit, as originally instituted, only injunction was prayed for, by an amendment compensation for damages caused by the act of defendants was also sought. Both the Courts have agreed in granting a decree to the plaintiff compelling the defendant to fill up the trench he has dug on the boundary of the property. The Appellate Court however gave a decree also for damages for Rs. 202/50, being the loss caused by the laterite stones being displaced. It is the defendant who has filed this second appeal.

(2.) The contention urged before me by counsel Mr. Prabhakaran Nair appearing for the appellant is that the plaintiff burdened his own land by the construction of the embankment and therefore he cannot have a complaint against the defendant that the lateral support to his property, which is a natural right of the plaintiff as owner, has been taken away. According to counsel the natural right extends only to bearing the burden in the natural state of the dominant heritage and if any additional burden is imposed the enforcement of the right of lateral support cannot be sought by the owner of the dominant heritage. According to counsel the only process by which right to support for his additional burden could be claimed is by acquisition by prescription and on the facts of this case a plea that it was so acquired cannot stand as admittedly the burden was imposed on the dominant heritage only a few years earlier, far within the period required to found a claim on prescription. That an owner of the servient heritage is not bound to bear any additional burden and that right to seek lateral support in the event of such additional burden being imposed can be acquired only by prescription is well settled. I need only refer to the decision of the Bombay High Court in Rasiklal v. Savailal (AIR 1955 Bom. 285) in this matter. The decision of this Court reported in Gopalakrishna Panicker v. T. Devaswom ( AIR 1959 Ker. 202 ) is also relied upon by the counsel as supporting his stand. I do not think this contention of the counsel is a matter of controversy. But there is the further question, namely, whether by reason of imposition of an additional burden on the dominant heritage the right of lateral support in its natural condition is also lost. In other words, though an owner of land who constructs buildings thereon or deals with it in such a manner as to materially impose an additional burden on the owners of the subjacent and adjacent soil, may not be entitled to seek the right of lateral support for the additional burden, is he nevertheless entitled to claim that support which his property would have had in its natural condition I do not see my way to accept the proposition that by substantial or material alteration of the dominant heritage resulting in an additional burden on the servient heritage the right of support to the dominant heritage even as it was in its original condition would also be lost.

(3.) In Wyatt v. Harrison (110 English Reports KB 320) Lord Tenterden, C. J. considering a case of a person who built to the utmost extremity of his own land complaining of the owner of the adjoining land digging the ground there so as to remove some part of the soil which formed the support of the building so erected said,