Kerala High Court
M.I. Mathew Alias Kuttachan vs K.R. Gopalakrishnan Nair And Ors. on 13 February, 1991
Equivalent citations: AIR1991KER248, AIR 1991 KERALA 248, (1991) 1 KER LT 632, (1991) 1 KER LJ 474, (1991) 2 CURCC 341, (1991) 2 LJR 317
Author: K.G. Balakrishnan
Bench: K.G. Balakrishnan
JUDGMENT K.G. Balakrishnan, J.
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. 68Iof 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 adquate 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.
4. The plaintiffs filed A.S. No. 310 of 1982 before the District Court, Kottayam. The lower appellate court held that the defendants constructed the drain touching the land of the plaintiffs and the plaintiffs are entitled to lateral support to their land from the adjoining land and if the drain is allowed to stay there, there will be no lateral support for the land of the plaintiffs and the defendants were directed to restore the adjacent land to a width of about 2 ft. to its former position. The plaintiffs were allowed to recover Rs. 2150/-as damages from the defendants. The finding of the lower appellate court is challenged in this second appeal.
5. The appellants in both the appeals contend that the court below erred in finding that they are liable to pay damages to the respondents. It is pointed out that the appellants had dug earth for 1 /2 feet depth and the excavation was completely within the property of the Public Works Department and therefore the respondents are not entitled to get any damages whatsoever. It is pointed out that the respondents1 property was burdened with a compound wall and the same was constructed only a year back and the respondents are not entitled to get any easement by prescription for the lateral support for the wall constructed by them. Reliance was placed on the decision reported in Narayanan v. Sankaran. 1971 KLJ 599. Therein it was held :
"that an owner of the servient heritage is not bound to bear any additional burden and that right to seek lateral support in the event of such additional burden being imposed can be acquired only by prescription is well settled. Though an owner of land who constructs building thereon or deals with it in such a manner as to materially impose an additional burden on the owners of the subjecent and adjacent soil may not be entitled to seek the right of lateral support for the additional burden the further question is whether he is nevertheless entitled to claim that support which his property would have had in its natural condition. The proposition that by substantial or material alteration of the dominant heritage resulting in an additional burden on the servient heritage the right of support to the dominant heritage even as it was in its original condition would also be lost cannot be accepted."
The law on the point has been explained in B.B. Katiyar's Law of Easements and Licences in India, 1979 Edition at page 135 as follows:
"Where a neighbour digs his land to the very extremity and thereby the boundary wall of the neighbouring house is damaged, the right of lateral support can be claimed only if it is proved that such right had been acquired by prescription."
A property owner in exercise of his right to property can build even to the very extremity of his land and his neighbour has no cause for complaint and if his neighbour also in exercise of his natural right of property digs to the very extremity of his land and if the wall of the former falls, he is not entitled to get any damages from his neighbour. In an earlier English decision in Wyatt v. Harrison 110 English Reports KB 320 Lord Tenterden C.J. in a similar occasion observed :
"It may be true that if my land adjoins that of another, and T have not by building increased the weight upon my soil, and my neighbour digs in his land so as to occasion mine to fall in, he may be liable to an action. But if I have laid an additional weight upon my land, it does not follow that he is to be deprived of the right of digging his own ground, because mine will then become incapable of supporting the artificial weight which I have laid upon it."
In the instant case the specific allegation in the plaint that the workers of the appellant in S.A. 447 of 1984 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-respondents have no case that the workers of the appellant trespassed into their land and constructed drain. The evidence in this case would show that the respondents constructed the compound wall to the very extremity of their property and they did not use cement for the construction of the compound wall. The commissioner's report would show that the wall was constructed with granite stones and mud mortar. It is also admitted by the respondents that while constructing the compound wall no 'weep-holes' were left on the compound wall to drain away the rain water collected in the compound. Admittedly the southern side of the respondents' property is lying at a higher level. In the above circumstances it can be seen that the wall collapsed not due to the negligent acts of the respondents and the lower appellate court was not justified in awarding damages to the respondents.
6. I set aside the judgment and decree of the lower appellate court and dismiss the suit. The two second appeals are allowed. The parties are directed to bear their costs.