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1988 DIGILAW 342 (KER)

RAMAKRISHNAN v. DEVASSY

1988-07-26

PADMANABHAN

body1988
Judgment :- 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 (PW2 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. 4. 4. The only other contention was that the suit must fail for want of plea and proof regarding enjoyment of the natural right of support from the adjacent and subjacent soil for the statutory period of 20 years within two years of the institution of the suit. That natural right was also contended by the appellant to be an easement which could only be acquired by grant or user. Reliance was placed on S.7,15 and 35 of the Indian Easements Act and the decisions in Bauribandhu Patra and another v. Sagar Malta (A.I.R. 1966 Orissa 86), Rasiklal Manilal Bhatt and others v. Savailal Hargovindas Sur (A.I.R. 1955 Bombay 285), Gopalakrishna Panicker v. Thirunakkara Devaswom (A.I.R. 1959 Kerala 202), Ramgopal v. Gopikrishna (A.I.R. 1957 Madhya Pradesh 227), In re Athi Ayyar (A.I.R. 1921 Madras 322), and Sukumaran Nadar v. Sadasivan (1972 K.L.T.1063), particularly the first decision. The sections or the decisions will not in any way support the position canvassed. 5. S.15 only deals with acquisitions of easements by prescription and S.35 is concerned only with injunctions against disturbance of easement. S.7 only enumerates some of the exclusive natural rights of ownership of land and says that easements are restrictions on such rights. Such easements amounting to restrictions on the rights of the servient owner may be acquired by grant, by prescription or enjoyed as of necessity. We are not concerned with any such easement because none is claimed. S.7 deals broadly with two categories of rights namely the exclusive right of enjoyment of the property and dispose of the same and all products thereof and accession thereto as well as the right to enjoy without disturbance the natural advantages arising from its situation. We are concerned with the second category of natural rights covering Illustration (e) which says that every owner Of land has the right that such land in its natural condition shall have the support naturally rendered by the subjacent and adjacent soil of another person, The explanation makes the position clear and says that land is in its natural condition when it is not excavated and not subjected to artificial pressure. Subjacent and adjacent soil from which the right of natural support is there is only such soil in its natural condition and only for the dominant heritage in its natural condition. 6. Subjacent and adjacent soil from which the right of natural support is there is only such soil in its natural condition and only for the dominant heritage in its natural condition. 6. Just like the right of a person to construct a building or boundary wall upto the extremity of his property, the neighbour has also the natural right to dig to the very extremity of his land provided the natural right of support of the neighbour is not interfered with. Natural right of support from the subjacent and adjacent soil is available only when the land is in its natural condition without being excavated or subjected to artificial pressure by constructions or otherwise. The neighbouring land has no natural liability to be subservient to the artificial pressure created by man. Such rights for support to the artificial pressure or excavation could only be acquired by prescription for the statutory period as an easement because it is not a natural right. Before acquiring such right by prescription if the neighbouring owner digs his land without being careless and the building or compound wall is damaged there is no liability. The position may be different if the right has been acquired by prescription for the statutory period. That is only what the decisions relied on by the.appellant held. In this case the land of the plaintiff was in its natural condition without excavation and without being subjected to artificial pressure and the subjacent and adjacent soil from which natural support is claimed was also in its natural condition till it was excavated shortly before suit for digging chal. 7. Every land owner has the right to support his land in the natural state. It is not an easement as distinguished from the right to support for the structures which has to be acquired. The former is a natural right of property. It is to support the land in its natural state vertifically by the subjacent strata and laterally by the adjacent soil (see C.P. Mammen v. Kunchathy Kesavan-1956 K.L.T. S.N. Page 46 A.S. No. 143 of 1954). The natural advantage arising from the situation are the advantages which arise in the course of nature, or from a natural cause, as distinguished from an act of man or some artificial cause. Natural rights are rights in rem and are inherent in land ex jure naturae. The natural advantage arising from the situation are the advantages which arise in the course of nature, or from a natural cause, as distinguished from an act of man or some artificial cause. Natural rights are rights in rem and are inherent in land ex jure naturae. They are not acquired by user as an easement, though they are capable of being lost by adverse enjoyment. Natural rights are those incidents and advantages which are provided by nature for the use and enjoyment of a certain property. They are in law the ordinary incidents of the ownership of property and annexed to land wherever it exists. They secure full enjoyment of the land undiminished by any wrong act of a neighbour. 8. As distinguished from that, easement is a specific right subtracted from the general rights constituting ownership of one property and attached to the ownership of another property. It is restriction of natural right, but what we are concerned in this case is the natural right itself. Natural right of support of land in its natural condition is right of property and an attribute of nature given for the common benefit of mankind without being acquired by act of man. It is a right given by implication of law to have the best use of the property in its natural condition provided it does not injure the rights of the neighbours. It is an ordinary right of property, necessarily and naturally attached to the soil without being conferred or acquired. In the natural state of land one part of it will receive support from another, upper from the lower strata and soil from the adjacent soil. This support is natural and is necessary so long as the status quo of the land is maintained. The status quo of support passes with the property in the land not as an easement by a distinct title, but as an incident to the land itself 'sine quo res ipsa habri non-dehat'. There is, therefore, no force in the contention that what is claimed is an easement which acquires plea and proof. 9. It is an undisputed proposition that the owner of a servient heritage is not bound to bear any additional burden created by man unless such a right is acquired as an easement. There is, therefore, no force in the contention that what is claimed is an easement which acquires plea and proof. 9. It is an undisputed proposition that the owner of a servient heritage is not bound to bear any additional burden created by man unless such a right is acquired as an easement. The question whether additional burden on the adjacent and subjacent soil created by man is capable of extinguishing the natural right itself is only a matter of academic importance so far as this case is concerned because such a situation has not arisen here. But such a question was also considered in Narayanan v. Sankaran (1971 K. L. J. 599) and P. Subramonian Poti, J. (as he then was) said: "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 relevant question would not only be whether there are additional structure or additional weights imposed on the land of the plaintiff, but whether even without such an imposition, the acts of the defendant are likely to cause damage to the plaintiff. If it is likely to cause damage to the plaintiff, then plaintiff would be entitled to the injunction prayed for". It naturally follows that the law laid down by the Appellate Judge and the relief granted are in order. The second appeals fail and they are dismissed without costs.