RAMAKRISHNAN Vs. DEVASSY

JUDGEMENT

(1.) Plaintiff and defendant are owners of adjacent lands on the sea-shore having sandy soil mixed with slight clay. Plaintiff's land is on the east and defendant's on the west. Alleging that defendant dug a chal more than 8 feet deep on the western extremity of his property to a length of 79 feet thereby depriving him of his lateral support, the plaintiff sued for prohibitory and mandatory injunctions. Defendant denied the allegation and said that the diluted chal was a natural tank which was in existence from time immemorial and he only removed the silt to enable flow of water and level the remainder of his property.

(2.) On evidence both the courts below found that there was an old tank in the defendant's property. While the Trial Court held that 22 feet out of the 79 feet length of chal is covered by the old tank, the appellate court was of opinion that the entire length of the chal is a new construction. Trial Court decreed the suit only to the extent of directing the defendant to put up a retaining wall to the extent of 57 feet. There were two appeals, A.S. No. 5 of 1977 by the defendant and A.S. No. 63 of 1977 by the plaintiff. The first one was dismissed and the second allowed directing the retaining wall to be constructed to the entire length of 79 feet.

(3.) The decisions of the courts below were by appreciating the oral evidence consisting of two witnesses for the plaintiff and four witnesses for the defendant as well as documentary evidence which include the title deeds and two reports submitted by two Commissioners (PW 2 and DW4) after local inspection. It is admitted that plaintiff's land is in its natural condition and not subjected to any artificial pressure by any construction or otherwise. The finding of the appellate court that the support naturally rendered by the subjacent and adjacent soil of the defendant to the land of the plaintiff in its natural condition was removed by the defendant by the digging of a new chal to a length of 79 feet do not require interference by this Court in the two second appeals filed by the defendant against the two decisions in the appeals.