I K J JACOB Vs. K NANDAGOPALAN

JUDGEMENT

(1.) The right to lateral support is a right recognised in law as between owners of adjacent lands. No owner of a land can treat his land in such a manner as to remove the lateral support from the adjoining land or to impair it substantially so as to cause subsidence of land of the adjoining owner. Such subsidence would be caused by an owner of land removing the soil from his land on the boundary of his property to an appreciable degree unless it be that his property is on a higher level and the soil is removed therefrom so as to bring it down to the level of the land of the adjoining owner. Otherwise the removal of the soil would result in the caving in of portions of the land of the adjoining owner and would infringe the right of lateral support of such owner. Any person who is threatened with injury to his right of lateral support could seek an injunction from a civil court to restrain such an act and in appropriate cases where the injury had already been caused a mandatory injunction may issue to restore the lateral support by any means the court finds feasible.

(2.) In the case before me the plaintiff complained that the defendants had been removing the soil from their land situate at lower level with the result that the plaintiff's property was losing its lateral support. As a fact that has been found by the courts below. The Trial Court granted a mandatory injunction as prayed for by the plaintiff. The appellate court recognised the right of lateral support adverting to the decision of this court in Narayanan v. Sankaran ( 1971 KLJ 599 ), but found on the facts that the plaintiff was not entitled to mandatory injunction as prayed for. Two reasons are mentioned to support this conclusion. The main reason was that the lateral support could be provided to plaintiff's land only if defendants' land is refilled with soil, that plaintiff had never made such a demand and therefore the mandatory injunction could not be granted. The other reason which is shown as an additional reason is that the plaintiff did not choose to prevent the defendants from excavating the soil, suggesting that plaintiff stood by and watched the defendants' acts without protest. Both these reasons are unfounded. It is not as if the only way of making good lateral support is by refilling the defendants' land with the soil which had been excavated. That may not be practicable and evidently that is the reason why plaintiff did not seek it. If a granite or masonry wall of sufficient strength is put up on the boundary or a little beyond in the defendants' property that would be sufficient to give lateral support to the plaintiff's property. In fact Ext. C2 Commissioner's Report indicates this possibility. It is that which could have been granted by the court. It is also not true to say that defendants acquiesced in the plaintiff's acts. The evidence shows otherwise. In as much as the court felt that there was no remedy available and also that plaintiff's conduct had made him ineligible to any remedy the judgment of the learned Judge calls for interference as the Judge is seen to be wrong in both these assumptions. Hence in reversal of the decree of the lower appellate court I hold that the plaintiff is entitled to lateral support.

(3.) Having found this I do not think a simple decree directing that lateral support be provided is to be passed in this case leaving it to the execution court and ultimately to the Amin to decide what such lateral support should be. That is a matter which is of substantial concern. In these circumstances this decree is treated as a preliminary decree and the Trial Court will decide as to what form the lateral support should take. What should be the cost thereof and what direction is to be made to meet the cost are all matters which the court below would go into in passing a final decree in the case. Disposed of as above. No costs.