KESHAV KRISHNA KULKARNI Vs. SHANKAR MAHADEV KULKARNI

JUDGEMENT

(1.) The plaintiff sued to obtain a permanent injunction ordering the defendants to see that the two palm trees and the jack-fruit tree growing in the defendants land, or their leaves or any portion of them did not overhang either the plaintiff's house or land, and to obtain an order that these trees should he cut down by the defendants at their expense and that in default the plaintiff should be allowed to do so at the expense of the defendants, also for damages and costs.

(2.) The defendants raised many contentions in their written statement. The principal issues raised on the pleadings were:- (1) Is the plaintiff entitled to have the defendants palms and jacktree (Nos. 1 to 3 in the map-exhibit 18) removed ? (3) Is the plaintiff estopped from asking for the removal of the palms and jaoktree ? (4) Is the suit barred by limitation. (5) Have the defendants any and what rights of easement with regard to the palms?

(3.) The trial Judge held that the plaintiff was entitled to have such portions of defendants palm and jack-fruit-tree cut as overhung his property; that the plaintiff was not estopped from asking for the removal of the palms, and that as to the jack-fruit tree the question of estoppel did not arise; that the suit was not barred by limitation; and that the defendants had no rights of easement whatever. Accordingly he directed the defendants to remove and cut off those portions of the two palms and one jack-fruit tree which overhung plaintiff's land, failing which plaintiff was at liberty to cut them down at defendant's costs through Court. He awarded no damages to plaintiff but allowed proportionate costs against defendants. In appeal the principal issues were:- (3) Whether issue 5 trained in the lower Court, is not comprehensive and does not include the right of customary easement claimed by the defendants? (4) Whether the easements claimed by the defendants are proved? (5) Whether plaintiff is entitled to have the two palms and one jack tree out so far as they overhung plaintiff's site and house?