KUPPANDY Vs. SIVASANKARAN

JUDGEMENT

(1.) The defendant is the appellant. The plaintiff respondent died and his legal representatives are additional respondents 2 and 3.

(2.) The appellant and the respondents are neighbours. The appellant has his residence in the eastern plot (plaint 8 schedule property) and the respondents have their house in the western plot (plaint A schedule property). The appellant's compound is lower in level than that of the respondent. There is a fence 3 to 4 feet high dividing the two compounds This fence is 6 to 10 inches west of the wall of the appellant's house. There is a mango tree in the respondent's compound. It stands 4 feet 7 inches west of the wall of the appellant's house. In July 1973 when the Commissioner inspected it, its bottom portion had a girth of about 40 inches. It was then 30 to 35 feet tall. The Commissioner estimated that it was then 10 to 14 years old. In his opinion it is a healthy tree which is not likely to fall down. It is common case that this mango tree is there even today and it has not fallen down till now. This tree leans a little to the east. It has 3 main branches at a height of 5 1/2 feet from the ground level. One of its branches grows straight up and the other two branches grow east and south-east into the appellant's compound and towards the appellant's building. The dispute in this case concerns this mango tree - as to whether it should be cut and removed.

(3.) On 2-12-1970 the appellant filed a complaint before the Executive First Class Magistrate, Palghat stating that the branches of the mango tree overhanging the appellant's compound is likely to endanger the lives of those who live in the appellant's house. The Executive First Class Magistrate forwarded it to the Tahsildar, Palghat for his report. On receipt of the Tahsildars report, the Executive First Class Magistrate, on 5-4-1971 passed a conditional order under S.133 of the Code of Criminal Procedure, 1898 requiring the plaintiff to cut and remove the mango tree or to appear before him on 7-5-1971 and show cause against the same. The plaintiff appeared on 7-5-1971 and filed his objections. The Executive First Class Magistrate then took evidence. He made the conditional order absolute. Ext. B2 is the copy of that order. It is dated 31-12-1971. The plaintiff went up in revision before the Sessions Court, Palghat. The Court was of the view that Ext B2 order has to be interfered with and therefore referred it to this Court under S 438 of the Code of Criminal Procedure This Court held that no interference with Ext. B2 order is called for and that the reference was bad. This Court, therefore, rejected the reference. This was as per Ext. B1 order dated 28-8-1972.