1. Plaintiffs in O.S.330 of 1996 on the file of Munsiff Court, Mavelikkara are the appellants. Respondent is the defendant. The suit was one for permanent prohibitory injunction. Plaint A schedule property belongs to the first appellant and plaint B schedule property to the second appellant. Plaint C schedule property of the respondent lies immediately to the east of the plaint A and B schedule properties. Admittedly, plaint A and B schedule properties are on a higher level than plaint C schedule property which is on a lower level. The properties are slopping from west to east. The grievance of the appellants is that respondent started escavating the plaint C schedule property upto the western boundary of plaint C schedule property and thereby respondent is taking away the lateral support available to the plaint A and B schedule properties and he has no right to do so. A decree for mandatory injunction was sought to construct a retaining wall so as to restore the lateral support, which was lost by removal of soil from the plaint C schedule property and also for a permanent prohibitory injunction from further escavation and thereby removing the lateral support. Respondent resisted the suit contending that removal of soil from plaint C schedule property will not cause any loss of lateral support and appellants are not entitled to the decree sought for.

2. Learned Munsiff on the evidence found that if soil from plaint C schedule property is to be removed upto its western boundary, it would result in loss of lateral support naturally available to the plaint A and B schedule properties and by removal of soil loss of lateral support was caused and granted a mandatory injunction directing respondent to construct a retaining stone wall. A decree for permanent prohibitory injunction was granted restraining respondent from removing the soil further so as to cause loss of lateral support. Respondent challenged the judgment before Additional District Court-II, Mavelikkara. Learned Additional District Judge on reappreciation of the evidence found that lateral support for plaint A and B schedule properties could be claimed only as long as they are kept in its natural condition and evidence show that appellants have caused artificial pressure to plaint A and B schedule properties by constructing a granite wall on their eastern boundary and therefore appellants are not entitled to claim lateral support available under illustration (e) of Section 7 of Indian Easement Act and they could claim lateral support, in view of the constructions made, only by recourse to the right of easement by prescription and as it is not pleaded or proved, appellants are not entitled to the decree sought for. Appeal was allowed and the decree passed by the learned Munsiff was set aside and suit was dismissed. It is challenged in the second appeal.

3. Second appeal was admitted formulating the following substantial question of law.

"Is the construction of a boundary wall at a height of 2 = feet would substantially change the landscape so as to obviate the responsibility of the neighbouring property owner to maintain the lateral support ?

4. Learned counsel appearing for appellants and learned senior counsel appearing for respondent were heard.

5. The learned counsel appearing for appellants pointed out that in spite of the claim for lateral support to the plaint A and B schedule properties in the plaint, respondent in his written statement has not contended that appellants have put additional pressure on the plaint A and B schedule properties and thereby plaint A and B schedule properties are not entitled to get lateral support from the plaint C schedule property. Learned counsel also argued that such a plea was sought to be introduced before the first appellate court, by filing I.A.128 of 2002 under Rule 17 of Order VI of Code of Civil Procedure by amending the written statement and that application was dismissed and in such circumstances, first appella