This second appeal challenged a decree granting lateral support to plaintiffs against an appellant who removed soil. The High Court dismissed the appeal, holding that civil courts do not need expert opinions for lateral support cases based on probability and accepted commissioner reports.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN
THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932
RSA.No. 628 of 2010()
--------------------AS.13/2008 of ADDL.DISTRICT COURT,KOTTAYAM OS.444/2004 of MUNSIFF COURT, VAIKOM
APPELLANT/APPELLANT/DEFENDANT
KUTTAPPAN,S/O.PAPPA,AGED 68,RESIDING AT MADAKKATHADATHIL,(NEDUVALA NIRAPPIL),KEEZHOOR KARA MULAKKULAM VILLAGE,VAIKOM TALUK.
BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH
RESPONDENT(S): RESPONDENTS/PLAINTIFF
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2010, THE COURT ON 16/09/2010 PASSED THE FOLLOWING:
S.S.SATHEESACHANDRAN, J
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Dated this the 16th day of September 2010
JUDGMENT
The defendant is the appellant. Concurrent decision
rendered by the courts below decreeing the suit in part in favour of the respondents/plaintiffs declaring that they are entitled to have lateral support from the property of the appellant/defendant and also restraining the defendant by a permanent prohibitory injunction from causing injury to such lateral support by removing sand from his property, with further directions to construct a supporting wall on the boundary of the plaintiff's property as specified, to undo the mischief to the extent the lateral support had been impaired, is challenged in the appeal. Though the plaintiffs have claimed for a mandatory injunction for the status quo ante before the removal of the lateral support to their property as canvassed for, the trial court granted that relief only to the extent of directing the defendant to construct a protection wall adjacent to his property, that too, as identified by the advocate commissioner in his report and sketch. First appellate court, negativing the challenges raised by the defendant in his appeal against the trial court confirmed it without any modification.
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item No.4 and also lateral support claimed in item No.5, in both of which the plaintiffs claimed such support for the three meters, the commissioner reported that such support need be for width of one meter of land in the respective items, item Nos. 4 and 5 adjoining to item No. 1 and 2 respectively, touching upon item No.3 property of the defendant. No objection was filed to the report by the defendant. In evidence, it has come out, as seen from the judgment of the trial court, that the defendant had removed sand from his property using JCB and that he had sold gravel for a price of Rs.100/- per load and the laterite sand for Rs.50/- per load. Though he stated that he had removed the sand leaving atleast one meter width from the property of the plaintiffs, the report of the commissioner showed that the removal was up to the boundary of the plaintiff's property. The commissioner had also reported that the excavation of sand from item No.3 property is likely to cause soil erosion to item No.4 property. Taking note of the evidence of defendant himself that some portion of his property has to be left untouched for the protection of the adjacent lands, on the materials produced, the learned Munsiff concluded that item No.1 and 2 properties require lateral support from item No.3 property of the defendant. Removing and excavating soil in item No.3 close to item No.1 and 2 properties, it
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was found, would result damage to those properties. The advocate commissioner is not an expert to speak on the lateral support available to a property, and also the damages likely to be suffered by removal of sand from the adjacent land, is not worthy of any merit. The civil court has to determine the disputed issues on preponderance of probability on the facts and circumstances established by the materials tendered. No expert opinion is required for the court to express any opinion or grant a decree for declaring the lateral support to an immovable property when such a relief is canvassed by a plaintiff in a suit. There was no dispute as to the identity of the boundary separating the properties of the parties and further the materials indicated that there was large scale removal of soil, even to considerable depth, from the property of the defendant adjoining to the properties of the plaintiffs. The court under such circumstances can act upon the report of the advocate commissioner, provided, there is corroborative materials as well to decide the question whether the claim of lateral support canvassed by the plaintiffs is sustainable. That alone was done in the present case. Conclusion formed by the trial court upholding the claim of plaintiffs, after reappreciation of the materials was also upheld by the first appellate court. No further injury had been caused to the
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properties of the plaintiffs by way of soil erosion after passing of the decree which has been canvassed to contend that the finding on lateral support to their property concurrently held by the two courts is not proper and correct, lacks any merit. Perpetual threat of injury to item No.1 and 2 by removal of the lateral support to such properties from the properties of the defendant, which has been fully established by the materials tendered in the case, is more than sufficient to sustain the decree granted in favour of the plaintiffs. Plaintiffs have not suffered further damage to their land after passing of the decree is not at all a circumstance that could be canvassed for to assail the decree granted in their favour. No substantial question of law is raised in the appeal for consideration, and the appeal lacks merit and it is dismissed.
S.S.SATHEESACHANDRAN JUDGE
vdv
2 issues framed by the court
Whether an expert opinion is required to grant a decree for lateral support.
Whether the removal of soil from the appellant's property damaged the plaintiffs' property.
Kuttappan
Meenakshi
Vinod
Sreekala
S.S. Satheesachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
