BODHIRAM Vs. TARABAI

JUDGEMENT

(1.) THE respondent (plaintiff) filed a suit claiming from the appellant (defendant) Rs. 100 as damages and a mandatory injunction ordering him (defendant) to cut and remove a Nim tree standing adjacent to the plaintiff?s will, inter alia, on the allegations that the Nim tree; which had been planted by the defendant adjacent to his wall about 17 -18 years ago, had so grown up in dimensions that its roots had now started causing damage to his wall by entering into the foundation of his wall and causing big cracks in it.

(2.) THE suit has been decreed by the Courts below on the following findings:?

(3.) THE first contention of the learned counsel for the appellant (defendant) is that there was no evidence for the finding that the Nim tree was the cause of cracks in the wall of the plaintiff. I do not agree. Besides Rajkuwar (D. W. 1), who says that the roots of the Nim tree have penetrated the foundation of the wall of the plaintiff causing cracks to appear in it, there is also the evidence of Yantram (D. W. 3) who was the Commissioner appointed by the Court for the preparation of a map of the wall and who says that the roots of the Nim tree have entered the foundation of the wall, that they are covered with earth and that the fact of the roots entering the foundation was not verified by him by digging around the wall because the defendant had admitted it. On this evidence the Courts below could reasonably find that the proximate cause for the damage to the wait of the plaintiff was the growing up of the defendant's Nim tree.