AMAR NATH Vs. GOPI NATH PANDEY

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and order dated 20-9-1989 rendered by llnd Addi. District Judge, Varanasi In C. A. No. 54 of 1988, dismissing the first appeal of the defendants appellants. In nut-shell, it may be mentioned that the plaintiff respondent had brought a suit for removal of certain branches of tree over-hanging his house, which was decreed by the trial court on 29-2-1988 and first appeal was dismissed.

(2.) I have heard the learned counsel for the appellant and also gone with him through the judgments of the courts below. The arguments of the learned counsel for the appellant have been directed to show that the proceedings under section 133 CrPC were commenced before the suit in April, 1981 and were dismissed. It may be that in view of this situation, the cause of action for nuisance which was the basis of the suit of the plaintiff, had accrued before 1981 but it could not be said as to how that would at all affect the decision In the suit and the appeal.

(3.) THE other argument was that no commission was issued and, therefore, it could not be considered whether trees were at all nuisance or not. THE mere existence of a tree belonging to another the branches of which over hang the property of the plaintiff Is the nuisance. THE quantum thereof is not going to affect the decision of the suit in any form. It is old settled law rendered by maxim-cujus est solum ejus, est usque ad coelum"-that the owner of the soil is owner also of the whole column of space above the surface, was well involved in the suit as exceptions to this maxim are only those which are covered by different legislatures. THE owner of a building has a right to remove any projection into his land or over-hanging tree bough or cornice and this right of the owner has been recognised in several cases such as Kunj Behari v. Basdeo, 47 IC 950, Chhagan Lal v. Hemchand, 1932 Bom. 224, Dahyabai v. Hira Lal, 37 Bom. LR 939 and Smith v. Giddy (1904) 2 KB 448.