GOPALAN Vs. NARAYANAN

JUDGEMENT

(1.) THIS appeal arises from the judgment dated 09.11.2011 in A.S. No.25 of 2007 of the Additional District Court (Adhoc-II), Manjeri interfering with dismissal of O.S. No.9 of 2005 of the Munsiff's Court, Perinthalmanna to the extent it concerned refusal of the trial court to grant decree for mandatory injunction.

(2.) THE respondent-plaintiff filed the suit for a decree for prohibitory and mandatory injunction. The respondent claimed lateral support to the suit property belonging to him from property of the appellant situated on the North. The respondent alleged that the appellant has removed earth from his property which affected support to the suit property. Prohibitory injunction prayed for was to restrain the appellant from removing soil further from his property on the north of the suit property while mandatory injunction was to direct the appellant construct retaining wall along northern boundary of the suit property so as to give support to that property.

(3.) TRIAL court found that the respondent is entitled to a decree for prohibitory injunction but refused to grant mandatory injunction for the reason that in spite of the dispute raised by the appellant that he has left two feet wide space (which according to the appellant is included in the suit property), the respondent has not taken steps to fix the northern boundary of the suit property, the Advocate Commissioner has not reported that there is possibility of suit property cave in on account of removal of earth from the property of the appellant and that more damage will be caused to the property of the appellant due to his act. The respondent challenged that part of the decree disallowing the prayer for mandatory injunction.