SOMESHVAR JETHALAL Vs. CHUNILAL NAGESIIVAR

JUDGEMENT

(1.) THE plaintiffs sued for the removal of such of the roots, stem and branches of the plaint mango tree as it encroached upon and overhung their land and thereby caused damage to the crop in the plaint land. THE suit has been dismissed in two Courts, and in this Court we have not had the advantage of hearing counsel for the respondent. THE facts of this case show that this tree, subject matter of the suit, grows partly oil the plaintiffs land and partly on the defendant s land, and for certainly fifty years it has been considered to be the defendant s tree, and the defendant has enjoyed the fruits of it. THEse being the facts, the question arises whether the plaintiffs are entitled to cut off the branches and roots of the tree which overhang and grow on their land respectively. We have been referred to the decisions in Vishnu Jagannath Joshi v. Vasudeo Raghunath Oka and Hari Krishna Joshi v. Shankar Vithal (1894) I.L.R. 19 Bom. 420. No doubt in those cases it was held that an owner of land whose neighbour s tree overhangs his land is entitled to I cut away the branches which overhang his own land, although they may have done so for more than forty years. But it seems to us that the facts in this case can be distinguished from the facts in those cases. In Vishnu Jagannaih v. Vanudeo Raghunath, the facts were exactly the same as in the earlier case of Hari Krishna v. Shankar Vithnl, whereas in this case the tree stands on the lands of both parties, and it has been admitted that the defendant is the owner of the tree and is entitled to all the fruits of his tree, although ho may thereby trespass on the plaintiffs land. But to hold on these facts that the plaintiffs are entitled f to cut off the roots and stem and branches (which are on the side I of a line drawn upwards from, the boundary) would be most unfair and also inconsistent with any law to which we have been referred on the subject. This is a special case which stands on its own facts. THE facts show-that the defendant is the owner of the tree, and that the plaintiffs must, therefore, put up with the disadvantages which exist owing to the tree putting its roots through his land, and owing to its branches overhanging his land. It must be remembered that in this country it often happens that a tree though (standing in the middle of the land of A yet belongs to B. I think therefore the decision of the lower Court was right and the appeal must be dismissed. Heaton, J.

(2.) I concur.