Kerala High Court
Gopinathan Nair vs George P. Jacob on 14 December, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934
RSA.NO. 1338 OF 2012 ()
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AS.212/2009 OF DISTRICT COURT, KOTTAYAM
OS.210/2007 OF MUNSIFF'S COURT, CHANGANACHERRY
APPELLANT/RESPONDENT DEFENDANT :
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GOPINATHAN NAIR, AGED 68 YEARS
MANAKKATTU SUNEESH SADANATHIL, VAZHAKUTTU BHAGOM
VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK.
BY ADV. SRI.S.JAYAKRISHNAN
RESPONDENT/APPELLANT PLAINTIFF:
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GEORGE P. JACOB
S/O.P.C.CHACKO
RESIDING AT MANAKUNNELAYA PUTHENPURAYIL HOUSE
[NOW RESIDING AT PUSHPANJALIYIL.) VAZHAPPALLY EAST VILLAGE
CHANGANACHERRY TALUK PIN 686103.
BY ADV. SRI.LIJO KURIAN JOSE
BY ADV. SRI.J.ABHILASH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 14-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No.1338 of 2012
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Dated this the 14th day of December, 2012
J U D G M E N T
Admit.
2. The following substantial questions of law are framed for a decision:
(i) Is the first appellate court justified in allowing the appeal and coming to a conclusion that portion of western boundary wall of the plaint schedule property collapsed due to the act of the appellant/defendant and the respondent/plaintiff is entitled to realize the amount from the appellant/defendant as damages?
(ii) Whether in the absence of a plea that support for the compound wall was acquired by the respondent-plaintiff by prescription, first appellate court was right in holding that the appellant is liable to pay damages on account of collapse of the compound wall?
3. The respondent appears through counsel.
R.S.A. No.1338 of 2012 -: 2 :-
4. The suit property belongs to the respondent as per sale deed No.474 of 1979. Property of the appellant is situated on the west of the suit property. The appellant removed soil from his property leaving one metre wide space to provide lateral support for the suit property. Later, on 01.01.2007 the appellant removed soil from that one metre space also consequent to which a portion of the compound wall and a room belonging to the respondent collapsed on 17.07.2007. Hence the respondent prayed for a decree for mandatory injunction to direct the appellant construct retaining wall and provide lateral support for the suit property and for recovery of damages to the tune of Rs.30,000/-.
5. The appellant contended that the local authority had issued notice to the respondent to remove the latrine. The compound wall of the respondent collapsed due to its oldness and inherent weakness. A further contention raised is that the compound wall is a common party wall as it was constructed by the appellant and the respondent jointly. The appellant also denied that on account of his act, the compound wall was collapsed or lateral support for the property is lost.
6. The trial court was not inclined to accept the evidence of the respondent, observed that only the respondent R.S.A. No.1338 of 2012 -: 3 :- has given evidence regarding construction of the compound wall, Ext.C1, report of the Advocate Commissioner does not give any indication of removal of soil as complained by the respondent and consequently dismissed the suit.
7. The respondent challenged that judgment and decree in A.S. No.21 of 2009 before the District Court, Kottyam. The learned District Judge reversed the finding of the trial court and granted a decree allowing the respondent to recover Rs.25,000/- with interest at the rate of 6% per annum and directing the appellant to construct a protection wall on the western side of the property of the respondent failing which the respondent could do so and recover its expenses from the appellant. That judgment and decree are under challenge.
8. It is contended by the learned counsel for the appellant that there is no sufficient evidence as to the nature of soil of the suit property and the property of the appellant. There is also no evidence to show that it was on account of removal of soil from the property of the appellant that the compound wall of the respondent collapsed. The learned counsel submitted that report of the Advocate Commissioner would show that the compound wall and the adjoining latrine were pretty old. Possibility of the same collapsing on account of its oldness and R.S.A. No.1338 of 2012 -: 4 :- inherent weakness cannot be ruled out. It is contended that in spite of the local authority issuing notice to the respondent to remove the tree adjoining the compound wall he did not do so, the roots of the tree went underneath the compound wall and upset the compound wall. A further contention the learned counsel has advanced is that so far as the compound wall is concerned, as that compound wall imposed additional burden on the property of the appellant, the respondent could claim lateral support only by prescribing a right under Section15 of the Indian Easements Act (for short, "the Act). In the circumstances it is contended that the first appellate court was not right in reversing the judgment and decree of the trial court.
9. The learned counsel for the respondent submitted that the mere absence of a plea regarding the respondent acquiring a right of easement under Sec.15 of the Act so far as the compound wall is concerned would not fatally affect the decision of the first appellate court since the parties, having understood the case of each other have gone for trial. It is submitted by the learned counsel that even in the written statement the appellant admitted that the compound wall is of 30 years old and hence it is clear that the compound wall was enjoying support from the property of the appellant for more than the statutory period R.S.A. No.1338 of 2012 -: 5 :- under Sec.15 of the Act. It is also submitted that there is sufficient evidence to show that it was due to the act of the appellant that the compound wall collapsed. Hence there is no reason to interfere with the judgment and decree of the first appellate court, it is argued.
10. The first appellate court has noticed that there was no denial in the written statement about the statement in the plaint that the appellant had removed soil from the eastern portion of his property even after retaining the one metre wide space. According to the respondent, soil from the one metre wide space was removed on 01.01.2007 and the compound wall collapsed on 17.07.2007. The appellant admits that the respondent had given a complaint to the local authority alleging that he had removed soil (adjoining the compound wall on its western side). As D.W.1, the appellant admitted that his property was at the same level of the suit property (before removal of soil). In the year, 1989, he removed soil from his property for construction of a building. He had at that time, left one metre wide space for providing lateral support to the suit property as instructed by the local authority. In Ext.C1, the Advocate Commissioner has reported that the space provided for lateral support (on the west of the suit property) had only a maximum width of 26 inches. Thus from the R.S.A. No.1338 of 2012 -: 6 :- evidence of the appellant as D.W.1 and Ext.C1 it is clear that even from the one metre wide space the appellant had earlier retained to provide lateral support to the suit property, substantial portion of the soil was removed by the appellant.
11. D.W.2 has stated that after the compound wall collapsed there was a mediation and it was decided that the appellant should construct a retaining wall. Exhibit C1, report reveals that the compound wall had collapsed at a length of about 19 feet. In Ext.C2, the Advocate Commissioner, after his second inspection reported that the wall has collapsed at a further length of 45 feet. Thus it is clear that even after the Advocate Commissioner first inspected the property there was collapse of a further portion of the compound wall.
12. Though there is a contention that roots of the trees in the suit property underneath the compound wall has caused collapse there is no acceptable evidence in that line. Therefore the first appellate court was right in concluding that the appellant removed soil from the eastern portion of his property and that resulted in loss of lateral support to the property which in turn resulted in a portion of the compound wall falling down.
13. Under Sec.7 of the Act the respondent is entitled to a natural right for lateral support for his property in its R.S.A. No.1338 of 2012 -: 7 :- unburdened state alone. When the property is burdened with structures it imposes additional burden on the servient tenement. In such a situation the person claiming lateral support must acquire a right by prescription under Sec.15 of the Act. This aspect has been dealt with by this Court in the judgment dated 05.09.2012 in R.S.A. No.1065 of 2012. Hence so far as the compound wall of the respondent is concerned, as it created additional burden and pressure on the property of the appellant, the respondent could acquire a right of prescription under Sec.15 of the Act. But in spite of such burdening the dominant tenement would continue to get the natural right for lateral support in the state it was not burdened.
14. May be, the appellant in his written statement stated the oldness of the compound wall as about 30 years. But I do not find any pleading in support of acquisition of lateral support under Sec.15 of the Act so far as the compound wall is concerned.
15. At the time of hearing, the learned counsel for the appellant has offered that the appellant would construct the retaining wall as directed by the first appellate court and a compound wall over the retaining wall at the portion where it has collapsed, at the expense of the appellant. That submission of the appellant in fairness has to be appreciated. That is accepted R.S.A. No.1338 of 2012 -: 8 :- by the learned counsel for the respondent as well. That is sufficient to remedy the grievance of the respondent and would also help to rebuild the relationship between the parties. The undertaking made by the appellant through his counsel is recorded and accepted.
16. The learned counsel for the appellant has submitted that for construction of the retaining wall and compound wall as aforesaid the respondent has to remove the adjoining trees in his property and at any rate the roots of those trees which have gone underneath the area where the retaining wall and compound wall are to be constructed. If the trees or roots cause obstruction to the construction of retaining/compound wall, it is necessary to remove the same since otherwise that would affect the construction and even stability of the construction. Whether the trees and roots are to be removed shall depend on the opinion an Expert Engineer shall give in the matter.
17. So far as dimension of the retaining wall and the compound wall (the latter, at the collapsed portion) and the material to be used for construction, I am inclined to think that the executing court shall decide the same taking into account the opinion the Expert gives.
18. The substantial questions of law framed are answered R.S.A. No.1338 of 2012 -: 9 :- as above.
19. The Second Appeal is disposed of as under:
In substitution of the judgment and decree of the District Court, Kottayam in A.S. No.212 of 2009 a decree is passed as under:
(i) The appellant shall construct a retaining wall and provide lateral support to the suit property.
(ii) The appellant shall construct compound wall on the retaining wall at such portions where the compound wall has already collapsed as reported by the Advocate Commissioner in Exts.C1 and C2.
(iii) The dimension of the retaining wall and the compound wall and the materials to be used for construction shall be decided by the executing court on taking into account the opinion of an Engineer.
(iv) The above work shall be carried out by the appellant within four months from the date of receipt of opinion of the Engineer failing which it will be open to the respondent to do so through the executing court and realize its expenses from the appellant.
(v) It is open to both sides to apply to the executing R.S.A. No.1338 of 2012 -: 10 :- court for execution of this decree. The parties or any of them may apply for the appointment of an Engineer to render his opinion as to the dimension of the retaining/compound wall and the materials to be used for its construction.
(vi) In case the trees or roots of the trees in the property of the respondent is to be removed for the proper and effective construction of the retaining wall and compound wall as aforesaid and may be opined by the Engineer, the executing court shall consider that opinion and pass appropriate orders in that regard.
(vii) The amount if any any deposited by the appellant as security as per the order of this Court could be withdrawn by him.
(viii) The parties shall suffer their cost of litigation throughout.
Considering the time limit provided as above for construction of the retaining/compound wall, the Registry is directed to ensure that a decree is drafted as early as possible, if necessary giving out of turn preference.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
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