Lateral support is a fundamental right in property law, necessitating careful boundary identification and assessment before granting injunctive relief.

J U D G M E N T

This appeal arises from the judgment dated 09.11.2011 in A.S. No.25 of 2007 of the Additional District Court (Adhoc-II), Manjeri interfering with dismissal of O.S. No.9 of 2005 of the Munsiff's Court, Perinthalmanna to the extent it concerned refusal of the trial court to grant decree for mandatory injunction.

2. The respondent-plaintiff filed the suit for a decree for prohibitory and mandatory injunction. The respondent claimed lateral support to the suit property belonging to him from property of the appellant situated on the North. The respondent alleged that the appellant has removed earth from his property which affected support to the suit property. Prohibitory injunction prayed for was to restrain the appellant from removing soil further from his property on the north of the suit property while mandatory injunction was to direct the appellant construct retaining wall along northern boundary of the suit property so as to give support to that property.

3. The appellant contended that he removed earth from his property after leaving two feet space on the northern side of property of the respondent, that two feet wide space also belonged to the appellant and hence the suit would not lie. Other allegations in the plaint were also disputed.

4. Trial court found that the respondent is entitled to a decree for prohibitory injunction but refused to grant mandatory injunction for the reason that in spite of the dispute raised by the appellant that he has left two feet wide space (which according to the appellant is included in the suit property), the respondent has not taken steps to fix the northern boundary of the suit property, the Advocate Commissioner has not reported that there is possibility of suit property cave in on account of removal of earth from the property of the appellant and that more damage will be caused to the property of the appellant due to his act. The respondent challenged that part of the decree disallowing the prayer for mandatory injunction.

5. The learned Additional District Judge, referring to various decisions held that respondent is entitled to get lateral support for the suit property from the property of the appellant on the northern side and granted a preliminary decree. The learned Munsiff-Magistrate was directed to pass a final decree in the lines stated therein. For the said purpose the case was remitted to the trial court.

6. The learned counsel for the appellant contended that in view of the contention the appellant has raised as to the northern boundary of the suit property a mere suit for lateral support would not lie. It is also contended that finding of the appellate court regarding possibility of the suit property losing lateral support is not correct.

7. The learned counsel for the respondent has contended that the appellant has no case that there is no fixed boundary on the northern side of the suit property. It is also contended that Ext.C2 series are sufficient to prove northern boundary of the suit property.

8. Assuming that the appellant has not specifically raised a contention that there is no fixed boundary on the northern side of the suit property he has claimed that he has left two feet wide space while removing earth from his property meaning thereby that the said two feet wide space is shown to be part of the suit property.

9. But it is not as if whenever there is dispute regarding boundary the respondent is obliged to ask fixation of boundary.

What is required here is only identification of northern boundary of the suit property.

10. So far as finding of the lower appellate court regarding lateral support is concerned the Advocate Commissioner has reported that at some point on the northern side of the suit property, soil is lose. The Commissioner has found portions on the northern side of the suit property having slid down. The lower appellate court has referred to the above and oral evidence of the parties to hold that there is possibility of the suit property slid