Ownership and existing property boundaries must be respected; excavation that endangers lateral support is legally restrained.

JUDGMENT

The Koyilandy Service Co-operative Bank/

the defendant in O.S.109/03 on the file of the Munsiff's Court, Koyilandy is the appellant. They challenge in this appeal the concurrent decree passed against them by the courts below.

2. The respondents/plaintiffs filed suit for injunction restraining the appellant/Co- operative Bank by a decree of prohibitory injunction from digging out the property belonging to them and lying on the western side of the plaint schedule property so as to deprive lateral support to their property and for mandatory injunction directing them to restore the compound wall part of which has slided down consequent on digging out of the property of the defendants without retaining lateral support to the common boundary wall.

3. The allegation of the respondents/

plaintiffs in the suit inter alia were that the scheduled property originally belonged to Matheyi/the grandmother of the plaintiffs who got it alloted her share by a registered partition deed of the year 1912 registered as deed No.3928/1912 of Sub Registry Office, Koyilandy; that on her death her legal heirs partitioned the property as per Ext.A8 partition deed and thereunder plaint 'B' schedule property was alloted to the plaintiffs, one Kunhikrishnan, Chandukutty and Narayanan; that the rights of Kunhikrishnan was released in favour of the first plaintiff and the right of Chandukutty was released in favour of the second plaintiff and they again entered into a deed of partition on 06/10/1980 under Ext.A9; that Narayanan assigned his right over item No.3 in favour of the second plaintiff and thus, the first plaintiff is in possession of item No.1 and the second plaintiff is in possession of item Nos.2 and 3 of the scheduled property; that the western boundary of the scheduled property is a laterite bund which is more than 100 years old; that the property on the west of the scheduled property originally belonged to one Advocate V.V.Rama Iyer and a school was functioning in the said property which was later assigned in favour of the defendant/ Society and thereafter, the school ceased to function; that the society was conducting banking business in a part of the premises and in the remaining premises Block Development Officer was in occupation and a library also was functioning; that recently, the defendant got vacated the premises in the occupation of the society and also demolished the building in full; that the defendants started digging the compound to excavate soil with the intention of bringing the property on a level with the National High Way passing along its western boundary; that the plaintiffs objected to the said action of the defendant as their property was being supported laterally by the property immediately on the west and excavation of soil would amount to soil erosion from the western boundary of the plaintiffs; that the defendants informed the plaintiffs that they have intention to construct the building complex and for the purpose the excavation of soil was necessary; that on the complaint of the plaintiffs, the Koyilandy police caused excavation work to be stopped; that the Society consequently tried to raise a dispute on the boundary with the assistance of survey officials and plaintiffs were served with a notice from the Revenue Department for re-determination of the western boundary; that later, they were served with another notice dt.10/11/2000 informing that the boundary has been fixed; that apprehending foul play at the hands of the defendant, plaintiffs filed an appeal before the Superintendent of Survey and by order dt.03/08/02, the Superintendent of Survey has informed the plaintiffs that the boundary has been found correct without further, clarifying as to whether the boundary is different from that of the existing boundary; that the defendant continued with the digging operation in their property and consequently, the boundary wall between the two properties got partly collapsed; that therefore, the plaintiffs file