The Kerala High Court was recently faced with the question as to whether the removal of soil by a landowner, subsequent to the institution of a suit, would disentitle such landowner from raising a claim for easement right of lateral support from his neighbour’s land.

The Single Judge Bench of Justice P.G. Ajithkumar took the view that if the unexcavated portions of the plaint schedule property are left as such, the lateral support to the landowner’s property, which is retained in its original level can be ensured. The Court however, added that if the landowner also lowered the level of his respective properties, he would then be precluded from claiming natural right of lateral support in view of Section 7 of the Indian Easement Act, 1882 (‘Easements restrictive of certain rights’).

The plaintiff in the suit (appellant herein) sought an injunction decree restraining the defendants (respondents herein) from causing any obstruction to the removal of earth and levelling of plaint schedule property up to the present level of the defendants’ property, which are situated on the northern and eastern side of the plaint schedule. The plaintiff was aggrieved that the defendants had already excavated soil from their respective properties and that the portions of the plaintiff’s property remain on a higher level thus has to be lowered for the purposes of constructing a compound wall and protecting his property.