MAHABIR CHOUDHARY Vs. JADU NANDAN TIWARI

JUDGEMENT

(1.) This appeal by the defendants first party arises out of a suit brought by the plaintiff-respondent No. 1 for removal of the trees planted on survey plot No. 377 of Khata No. 466 and survey plot No. 840 of Khata No. 363, in village Bajitpur, fully described in schedules 3 and 4 of the plaint, and for damages caused to him on account of those trees.

(2.) The case of respondent No. 1 was that he is the owner of culturable plots covered by survey plots Nos. 839 and 841 (schedule 1 of the plaint) and survey plots Nos. 374 and 375 (schedule 2 of the plaint). All these four plots are adjacent to the lands covered by survey plots Nos. 377 and 840 which belong to the appellants. The four plots belonging to respondent No. 1 plot Nos. 374, 375, 839 and 841 are culturable lands and produce chillies, rahar, maize and other crops. Survey plot No. 840 belonging to the appellants lies between plots Nos. 839 and 841, both of which belong to respondent No. 1; whereas survey plot No. 377 of the appellants is contiguous north of survey plots Nos. 374 and 375 belong to respondent No. 1. In the month of September, 1960, the appellants planted sisura trees on the extremities of their plots Nos. 377 and 840 and also planted mango trees thereon two years thereafter. The sisum and mango trees have now become grown up and their branches extend beyond the limits of the land belonging to the appellants, protecting over the adjoining culturable lands of respondent No. 1. Accordingly, respondent No. 1 brought the suit for removal of those trees and also for damages to the tune of Rs. 50/- against the appellants.

(3.) The plea of the appellants was that the trees planted by them in survey Plots Nos. 377 and 840 do not cast any shadow on the lands of respondent No. 1 and as such no damage is caused to the crops of respondent No. 1. The further defence of the appellants was that the trees stand on their own plots, viz, plots Nos. 377 and 840, and respondent No. 1 not having suffered any damage nor likely to suffer any damage was not entitled to get a decree for removal of the trees or for damages on account thereof.