MATHEW Vs. UTHUPPU THOMMAN

JUDGEMENT

(1.) APPELLANT-plaintiff filed the suit for mandatory injunction for cutting and removing over hanging branches of trees standing in the property of defendants 1 to 5. Plaintiff resides in the plaint schedule property. Defendants 1 to 3 have property on the northern side of the plaint schedule property and defendants 4 and 5 have property on (he western side. Contention of the plaintiff is that as a result of the over-hanging of the branches of the trees income from his property is very much reduced and his request to defendants to cut and remove overhanging branches has gone unheeded. Defendants denied the allegations in the plaint and contended that no injury has been caused to the plaintiff as a result of the overhanging of the branches of the trees. Learned Munsiff dismissed the suit holding that though the shade from the trees of the defendants has spread towards the plaint schedule property there is no evidence of any actual injury sustained by the plaintiff. The Munsitf held that plaintiff has not succeeded in proving that he is either damnified or inconvenienced due to the overhanging of the branches of the trees into his property. Plaintiff's appeal was dismissed by the learned Additional district Judge reserving him the right to have a similar suit filed as and when necessity arises and if he chooses to do so. The Additional District Judge held that since there is no imminent cause of action plaintiff cannot obtain mandatory injunction.

(2.) IN Ext. C-1 commission report Commissioner stated that branches of the trees standing in the property of the defendants are overhanging into the property of the plaintiff to a distance of nearly 101/2 feet. IN view of the commission report which has not been objected to by the parties, the Additional District Judge held that there is clear evidence to show that the branches of the trees standing inside the property of the defendants overhang into the plaint schedule property and thus creating shade there. IN view of the shade it would not be possible for the plaintiff to enjoy his properly to the maximum and it would not be possible for him to raise any cultivation or agricultural operations. Defendants' contention that coconut trees in the plaint scheduled property stand beyond 20 feet from its boundary and so there is no likelihood of any damage or injury being caused to the plaintiff is no answer to the grievance of the plaintiff.

(3.) IN Balcha Rowdier v. Alagappanservai (AIR 1959 Madras 12) the Madras High Court held thus: "the owner of a tree has no right to allow its branches to overhang the land of his neighbour. If he does so the neighbour can cut the branches so long as he could do so without entering upon the land of the owner of the tree. He need not even give a notice to the owner. The owner of the tree cannot acquire any right by prescription to allow its branches toovcrhang because an old nuisance cannot by passage of time become a respectable nuisance. Merely because the previous owner did not object, perhaps due to his relationship witty the owner of the tree it cannot be said that there has been acquiescence and therefore the succeeding owner is estopped or prevented from claiming relief against the nuisance". Merely because the plaintiff has not so far undertaken any cultivation in that portion of the plaint schedule property, the nuisance as a result t of the overhanging of the branches of trees into the plaint schedule property cannot be allowed to continue. Defendants cannot obviously contend that so far the plaintiff has not made any cultivation in that portion of the property and as he has not sustained any in jury or damage he is not entitled to seek the mandatory injunction. Proprietory right of the plaintiff cannot be infringed by anyone unless it is sanctioned by law. Allowing branches of the trees in defendants' land to overhang into the plaint schedule property affects the plaintiff's enjoyment and 'reasonable use of his property. So long as the overhanging continues it causes nuisance to the plaintiff as well as abridgement of his right of enjoyment. Though plaintiff has the right to abate the nuisance by cutting the branches of ;he trees protruding into his property, he can very well approach the Court to obtain necessary order for abating the nuisance. Merely because the overhanging of the branches of the trees was there for some lime and plaintiff did not take immediate action to get it cut and removed defendants cannot resist the suit on the ground that hitherto it remained so and the plaintiff has not suffered any actual damages. It is apposite to refer to Putrava v. Krishna Gota (AIR 1935 Madras 31) where the madras High Court held: "injunction may be granted for cutting off portion of the trees overhanging the plaintiff's lands where although no actual damage is proved, the trees are likely to cause damage to the plaintiff and where money compensation is not appropriate relief.