VISHNU JAGANNATH JOSHI Vs. VASUDEO RAGHUNATH OKA

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff for an injunction ordering the defendant to remove the trees overhanging his land and for damages. Both the lower Courts have allowed the plaintiff s claim as to the injunction, and directed that the defendant should remove and cut off the portions of the trees in suit which overhang the land of the plaintiff at his expense, failing which the plaintiff is to be at liberty to cut them down at defendant s costs. The damages were not proved and the claim as to damages was consequently disallowed.

(2.) In the appeal before us two points have been urged by Mr. Nijsure : first, that, as no damages are proved, no injunction could be granted ; and, secondly, that the defendants should have been allowed to prove the alleged local custom as to his right to retain the trees overhanging the plaintiffs land.

(3.) As to the first point I have no hesitation in disallowing the appellant s contention. It is clear on the authorities, and for the purpose of this point it is not disputed before us, that the plaintiff has the right to cut off those portions of the trees which overhang his land. This right is recognized in Lemmon v. Webb [1895] A.C. 1; Hari Krishna Joshi v. Shankar Vithal (1894) I.L.R. 19 Bom. 420 and Lahshmi Narain Banerjee v. Tara Prosanna Banerjee (1904) I.L.R. 31 Cal. 944. It is conceded that if the plaintiff had sued only for an injunction, he could have maintained the action. The last two of the cases cited above are instances of such actions. But it is urged that as the plaintiff has in fact claimed damages and has failed to prove them, his claim as to injunction cannot be allowed. No authority is cited in support of this proposition, and on principle I am unable to make his claim for an injunction dependent upon his ability to prove actual damages. The plaintiff has the right to cut off the overhanging portions of the trees, and, in my opinion, he has the right also to maintain an action to enforce that right if it is disputed apart from any question of damages. In the present case the matter does not rest there. It has been found by both the Courts that the overhanging trees are likely to cause damage to the plaintiff. Under these circumstances the first point fails.