ENOSE JUSTUS Vs. YOHANNAN THOMAS

JUDGEMENT

(1.) Boundaries of properties are generally man made and can be classified as natural and artificial. Halsbury's Laws of England, Fourth Edition, Page 390 states that a boundary is an imaginary line which marks the confines or line of division of two contiguous parcels of land. Ownership of trees standing or growing upon the boundary of the properties of two adjoining owners depends upon the question who planted or sowed the tree. Littledale, J. in Holder Coates (1827), M. & M. 112 ruled that the tree belongs to the owner in whose ground the tree was first sown or planted. In Lemon v. Webb (1894) 3 Ch. 1 at page 20 held that if the roots subsequently spread to the adjoining land that will not affect the ownership. In Holder v. Coates (supra) it has been held that where it is not known who planted the tree the ownership will depend upon the situation of the body of the tree. In Masters v. Police (1620), 2 Rolle, 141; Lemmon Webb (supra) held that if the tree is situate equally between the two properties, in the absence of evidence of ownership to the contrary, the tree will be presumed to belong to both adjoining owners as tenants in common. Referring to the above mentioned decisions. A.J. Hunt in his book "Boundaries, Walls and Fences", Sixth Edition concluded as follows:

(2.) We may examine the facts of this case in the light of the above mentioned judicial principles. Dispute is regarding ownership of an 'anjili' tree standing on the boundary of the properties of two adjoining owners who are judgment debtors and decree holders in OS. No. 11 of 1979 of Munsiff Court, Nedumangad. The decree holders in OS. 11 of 1979 were allowed to put up a boundary on the CD line in the plan annexed to the decree dated 28-2-1983. Original decree holder died and respondents/ additional decree holders 2 to 5 are his legal heirs. For the purpose of putting up a boundary on CD line the court deputed a Commissioner in EP. 153/94. Village Officer, Veeranakavu was also appointed to assist the Commissioner. Boundary was put up by the Commissioner after identifying the same with the help of the village officer. C1 is the report of the Commissioner. Revision petitioner then filed EA. 238/96 for dismantling the boundary put up by the Commissioner stating that it was put up in contravention of the decree and also for an injunction restraining the respondents from cutting and removing the 'anjili' tree and for allowing the petitioner to cut and remove the same. Petitioner stated that the Commissioner has deliberately put up a boundary in such a manner so as to exclude the 'anjili' tree standing in the petitioner's property. Petitioner referred to certified copy of the Commission report in OS. 693 of 1989, which was a suit between the petitioner and the Panchayat and contended that Commission report would clearly indicate that the 'anjili' tree in question stands in his property.

(3.) Petition was resisted by respondents 2 to 5 praying for dismissal of the petition. It was stated that the boundary was put up by the Commissioner with the assistance of the village officer in accordance with law. It was also pointed out that petitioner had intimidated the Commissioner and consequently they had to obtain police aid for putting up the boundary through CD line. Further, it was also stated that the 'anjili' tree standing in the western side of CD line was cut and removed by the petitioner and the Commissioner had not put up boundary annexing any portions of the petitioner's property. Further it was also stated that respondents were not parties to O.S.693/89 and hence the Commission report is not binding on them.