NITYA NAND PATHAK Vs. PATIRAM BARI

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for a declaration that a mahua tree, belonging to the defendants, had branches overhanging his house and well on plot No. 1188 in village Tilouthu. and tha thet defendanls had no right to keep that tree standing as it was, as well as for an injunction directing the defendants to cut and remove the mahua tree or in the alternative, to cut and remove the overhanging brunches.

(2.) Shortly stated, the plaintiff's case is that he purchased 2 and a half kathas of land out of plot No 1188, which has a total area of 1.30 acres, in 1355 Fasli, and that he purchased another 1 katha of land out of the same plot in 1358. A mahua tree, standing on the same plot and belonging to the defendants, has branches overhanging the land purchased by the plaintiff in such a way that they damage the plaintiff's house and well which are also in danger in case the tree falls.

(3.) The defendants" case, in short, is that the mahua tree has stood where it stands for a long time, and that the plaintiff deliberately constructed his house under the branches of the mahua tree, knowing full well the consequences of such construction. Hence, he is not entitled to the relief claimed by him.