M I MATHEW Vs. K R GOPALAKRISHNAN NAIR

JUDGEMENT

(1.) Both these appeals arise from the same judgment. S.A. No. 503 of 1984 is filed by defendants 1 and 2 in O.S. No. 681of 1979 of the Munsiff's Court, Kottayam. The 3rd defendant in that suit is the appellant in S.A. No. 447 of 1984.

(2.) The plaintiff filed the suit for damages. The plaintiffs are the owners of 29.75 cents of property comprised in Sy. No. 546/8 of Manarcadu village. This property is on the southern side of Oravackal-Kooropada road. The plaintiffs surrendered a portion of their property for widening the northern road. The property given by them was separately demarcated and survey stones were laid by the P.W. Department. The plaintiffs thereafter constructed a compound wall made of granite on the northern side of their property. The 1st defendant State started constructing a drain on the southern side of the road just abutting the property of the plaintiffs. The plaintiffs' case is that for the purpose of the drainage the workers of the 3rd defendant contractor excavated and removed earth from the land immediately adjacent to the plaintiffs' property on its north without leaving such a slope as would form an angle of repose adequate for the plaintiffs' land and constructed a drain running the entire length of the compound wall. The plaintiffs also alleged that while constructing the drain the 3rd defendant removed some of the rubbles from the bottom of the compound wall and the drain so constructed was having a width of 2 ft. and depth of 1 foot. According to the plaintiffs, as a result of the cumulative effect of the excavation and removal of earth from the land immediately adjacent to the plaintiffs' property and due to the removal of rubbles from the bottom of the compound wall, lateral support to the plaintiffs' property was lost so much so the plaintiffs' land caved in resulting the collapse of eastern portion of the northern compound wall. It was also alleged that several cracks were also formed on the remaining compound wall and it is likely that the said portion would also collapse in future. Therefore, the plaintiffs claimed damages for a sum of Rs. 4000/-.

(3.) The first defendant State and the 2nd defendant Executive Engineer filed joint written statement contending that the suit is not maintainable. The defendants contended that the boundary stone was planted in the property belonging to the State. The plaintiffs constructed the boundary wall with granite stones and mud and the walls were pointed only with mud mortar. The 3rd defendant who carried out the drainage work has not removed any rubble from the foundation of the wall nor has he removed any soil from the bottom portion of the wall. The drain was constructed exclusively through the land surrendered leaving the wall untouched. The drain has been dug only for depth of 25 cms and it had not affected any adjacent structure. The drain was properly constructed. The plaintiffs constructed the wall without providing sufficient base-width and foundation of the wall collapsed due to defective construction. The 3rd defendant in a separate written statement contended that the P.W.D. boundary stone was fixed within the P.W.D. land and the plaintiffs property lies on the south of the P.W.D. stone. The defendants constructed the drain only through the P.W.D. road and the depth of the drain is only 25 cms and, therefore, no slope was necessary as alleged by the plaintiffs. The depth of the foundation of the wall was only 5 ft. and they used mud mortar instead of using cement. The wall was collapsed due to thrust of drain water. No lateral support of the plaintiffs' property was destroyed by the construction of the drain. The trial court found that the rain water collected in the compound must have caused damage to the mud mortar used for the construction of the wall and, therefore, the wall must have caved in due to the pressure of water. The finding of the trial court was to the effect that the wall collapsed not because of the construction of the drain but because of the defective construction of the wall. The suit was dismissed by the trial court.