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Gopalakrishna Panicker Vs. Thirunakkara Devaswom - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 144 of 1956 (E)
Judge
Reported inAIR1959Ker202
ActsEasements Act, 1882 - Sections 7 and 15
AppellantGopalakrishna Panicker
RespondentThirunakkara Devaswom
Appellant Advocate C.K. Sivasankara Panicker, Adv.
Respondent Advocate V.G. Sankaranarayana Pillai, Adv.
DispositionAppeal allowed
Excerpt:
.....which endangered the same. sivasankara panicker is well-founded in his contention that the learned judge-has not really considered the legal principles applicable to the rights of parties i. in fact, the trial court has stated that an extreme contention was advanced on behalf of the defendants' counsel that a person putting up a wall at the extremity of his compound, does so at his own risk and that he cannot be heard to complain of any damage if the neighbour digs in his own land in the absence of an easement of support acquired by prescription or grant. section 7 of the act gives an exclusive right to every owner of immovable property to enjoy and dispose of the same etc. the said section also gives a right to every owner of immovable property to enjoy without disturbance by..........plaintiff into two regarding the injury to the kitchen building. even in respect of the wall, the learned judge has rejected the plaintiff's claim regarding the length of the wall from a to b and d to e shown in the plan, ex. e.5. but the learned judge declined to accept the contention of the defendants to the effect that they are entitled to carry on their lawful operation in their own plot and they are not responsible in law to any damage to the plaintiff. the learned judge, acting on the evidence of the plaintiff's witnesses, held that the subsidence of the wall and the cracks sustained by the wall in the portion b d was because of the act of the defendants in digging on their property.according to the learned judge, the property of the defendants was bound to give lateral support to.....
Judgment:

C.A. Vaidialingam, J.

1. The second defendant appeals against the decree of the learned Second Additional District Judge of Kottayam awarding damages to the plaintiff in the sum of Rs. 2,205/- and proportionate costs.

2. First defendant is the wife cf the second defendant the appellant. The plaintiff and the defendants are adjoining property owners, the defendants' property being immediately on the north of that of the plaintiff. The plaintiff constructed a wall on their property on their northern boundary separating their compound from that of the defendants. The defendants, according to the plaintiff, quarried the stones from their property which resulted in the deprivation of the lateral support to the plaintiff's compound wall.

As a result of the action of the defendants, the northern wall and the kitchen buildings belonging to the plaintiff, have developed very serious cracks and are in danger of falling down at any moment. The defendants are liable in law for the damages EO caused to the plaintiff. The plaintiff claimed a sum of Rs. 9,910/- on the basis of an estimate prepared by their Works Department in respect of the compound wall and the kitchen.

3. The first defendant, the; wife, remained ex parte and the husband the second defendant-appellant contested the suit. He contended that his compound is or, much a lower level than that of the plaintiff and for the purpose of constructing a building, the second defendant, in exercise of his lawful rights, levelled his plot. He also did some quarrying, as he was entitled to do in his property. He also contended that the compound wall and the kitchen of the plaintiff has not been affected by any act of his, but on the other hand, they have suffered, if at all, duo to improper construction without adequate foundation. In the alternative, he also contended that the damages claimed by the plaintiff was excessive.

4. The learned additional district Judge, after considering the, material evidence placed before him, came to the conclusion that the plaintiffs case in its entirety cannot be accepted. He has rejected the claim of the plaintiff into two regarding the injury to the kitchen building. Even in respect of the wall, the learned Judge has rejected the plaintiff's claim regarding the length of the wall from A to B and D to E shown in the plan, Ex. E.

5. But the learned Judge declined to accept the contention of the defendants to the effect that they are entitled to carry on their lawful operation in their own plot and they are not responsible in law to any damage to the plaintiff. The learned Judge, acting on the evidence of the plaintiff's witnesses, held that the subsidence of the wall and the cracks sustained by the wall in the portion B D was because of the act of the defendants in digging on their property.

According to the learned Judge, the property of the defendants was bound to give lateral support to the wall of the plaintiff and that support was lost when the defendants began digging and quarrying in their property. This according to the learned Judge, would make the defendants liable in law for damages and accordingly, the learned Judge decreed the plaintiffs claim for a sum of Rs. 2,205/- in respect of the damages sustained to the wall shown in Ex. E from point B to point D. In other respects, the claim of the plaintiff was rejected and the parties were directed to pay and receive proportionate costs.

6. The second defendant, as already stated, has filed this appeal contesting the decree passed as against him. There is a memorandum of objections filed by the plaintiff for the claim disallowed by the learned District Judge.

7. Mr. Sivasankara Panicker, learned Counsel for the appellant, has contended that the decision of the trial Court is contrary to law. Inasmuch as there is no allegation that the defendants wantonly interfered with the foundation of the wall, the appellant would not be liable in law for carrying on his lawful works in his property. The teamed Counsel also contended that the defendant's property was not bound to provide any lateral support to the plaintiff's wall, as the plaintiff has not acquired any such right either by prescription or easement and the learned Judge was wrong in summarily disposing of an argument based on these legal aspects. He also contended that the wall has collapsed, if at all, due to bad construction and also due, to the act of the plaintiff in throwing additional soil near the compound-wall which endangered the same.

8. The learned Counsel for the plaintiff-respondent, Mr. V. G. Sankaranarayana Pillai, on the other hand, supported the judgment of the trial Court. He has contended that the plaintiffs property is entitled to have the support in law from that of the defendants and the defendants cannot escape liability on the ground that what they were doing in their property was something within their right.

The learned Counsel also drew our attention to a passage in Halsbury's Laws of England II Edition, Vol. 24 at pp. 41 to 45 to the effect that a land-owner should not make an unreasonable use of his property. We are not inclined to accept this contention of Mr. Sankamarayana Pillai and the observations made by the learned author are on a totally different aspect of the rights of owners of property, and they have absolutely no application to the present case.

9. On the other hand, Mr. Sivasankara Panicker is well-founded in his contention that the learned Judge-has not really considered the legal principles applicable to the rights of parties i.e., as to whether the plaintiffs compound-wall was entitled to get the lateral support at the time of the action from the defendant's property.

10. We see very great force in this contention of Mr. Sivasankara Panicker. In fact, the trial Court has stated that an extreme contention was advanced on behalf of the defendants' counsel that a person putting up a wall at the extremity of his compound, does so at his own risk and that he cannot be heard to complain of any damage if the neighbour digs in his own land in the absence of an easement of support acquired by prescription or grant.

11. Again the learned Judge has stated that the question which was canvassed at the bar namely, that the natural right of lateral support extends only to land in its unburdened state and not to any artificial pressure put up on it, is only of academic interest in that case.

12. No doubt, the position contended for may be very extreme, but it does get some support in law and we get useful guidance from the provisions of the Indian Easements Act. Section 7 of the Act gives an exclusive right to every owner of immovable property to enjoy and dispose of the same etc. The said section also gives a right to every owner of immovable property to enjoy without disturbance by another natural advantages arising from its situation. In this case, the finding of the learned Judge on the evidence is that the de-fondant's land is about 10 feet lower than that of the plaintiff.

13. Illustration (e) to Sec. 7 and the Explanation is as follows :

'The right of every owner of land, that such land in its natural condition shall have the support naturally rendered by the subjacent and adjacent soil of another person.

EXPLANATION. : Land is in its natural condition when it is not excavated and not subjected to artificial pressure; and the 'subjacent and adjacent soil' mentioned in this illustration means such soil only as in' its natural condition would support the dominant heritage in its natural condition. It is clear that the plaintiffs land in its natural condition, will have the support naturally rendered by the defendants' land. The explanation makes it also clear that land, to have this right, should not have been subject to artificial pressure. There is evidence in this case that the compound wall, which is now stated to be affected, was only constructed about 10 years prior to suit, that is, about 1114. If so, we will have to see whether the plaintiff has got any farther rights.

There again we have to look up to Sec. 15 of 'the Act which provides that lands, subject to artificial pressure, receiving support from another person's land, should have had that benefit without interruption for 20 years and that 20 years must expire 2 years before the institution of the suit. It is not certainly the plaintiff's case that he has acquired any such right. Therefore, in view of these provisions, the learned Judge was not right in disposing of the, legal contention in that summary way indicated above.

14. In view of the fact that the plaintiff, even on his own case, has not been able to satisfy the provisions of sections 7 and 15 of the Easements Act, the plaintiff's suit must fail. In this view, we think it unnecessary to consider the other contentions of the appellant.

15. When, in our view, the suit itself must fail, there is no substance in the memorandum of cross-objections.

16. In the result, the appeal is allowed andthe suit dismissed. Parties will bear their owncosts throughout.


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