RANGASWAMI GOUNDAN Vs. ARUMUGHA GOUNDAN

JUDGEMENT

(1.) The question in these second appeals relates to the dispute between two adjacent owners of plots in regard to the right to cut the branches of an overhanging tree. It is settled law that an owner of land can cut the branches of trees which overhang on his land. But it is contended that it would make a difference if the plots were held in common ownership, and one of the plots with the trees thereon with its branches overhanging on another is sold. The main facts in this case are not in dispute. The appellants are the owners of survey No. 333. To the south of this plot is survey No. 338/2 which belongs to the respondent. Both these plots belonged to one common owner, one Roya Goundan the father of one Arunachala and the first appellant. The second appellant is the son of the first appellant. Arunachala had a son Palani. In a partition among the members of the family survey No. 333 and the western half of 338-2 were allotted among others to the appellant's branch while the eastern portion of Survey No. 338 was allotted among other properties to Arunachala's branch. After the partition the eastern half of survey No. 338 was demarcated as survey No. 338-1 and the western half as Survey No. 338-2. Two tamarind trees stood in survey No. 338 and one of them which has been the subject matter of dispute is in survey No. 338-2. There is a fence which separates survey No. 333 from No. 338. By a sale-deed dated 21 January, 1925, Palani, son of Arunachala sold the eastern half of the land of survey No. 338-2 with the trees to the respondent. By another sale-deed dated 31 March, 1927 the appellants conveyed the western half with the tamarind tree thereon to the respondent. The relevant portion in the conveyance is as follows: Yor shall hold and enjoy the undermentioned properties hereditarily from son to grandson and so on in succession with right of alienation by way of gift and sale. All wood and fruit trees, treasure and hidden treasure that are in the undermentioned plots belong to you

(2.) In the schedule there is the following recital: These lands and half of the well belonging to us in plot No. 338-2 excluding the half belonging to you together with the picottah, and the materials connected therewith and tamarind trees, cocoanut trees aid other trees situated on the said plot.

(3.) The physical features of the plot where the tree stands is thus described by the learned District Munsif in paragraphs 2 and 3 of his judgment: It will be seen from the commissioner's plan Exhibit C-1 as explained by his report exhibit C that this tamarind tree situated about nine feet away from the near side of the fence between the plaintiff's and the defendant's lands and 15 feet away on the far side has got branches overhanging the defendants land with a spread of about 16 feet on the defendants side of the fence and casts its shadow as shown by the semi-circular plotting in Exhibit C-1. The crop area of the overhanging branches on the defendants land is said to be about a tenth of the whole crop area. A stretch of land 8 feet abroad immediately north of the fence under the shade of the tamarind tree is left uncultivated and next north of it runs a water-way east- west and the defendants have plantain trees in the rest of the tamarind shade. East of the semi-circular portion, the defendants are trying to make chillies and brinjals which would have the shadow of the tamarind branches for some portions in the day. The ahove facts and the physical features are admitted.