GURUSAMI RAJA Vs. PERUMAL RAJA

JUDGEMENT

(1.) This second appeal is from a decree ordering the defendants to cut off the branches of defendant's trees which are overhanging the plaintiff's land to the extent shown in the plan attached to the decree within three months from the date of the decree, and, on defendants default, enabling the plaintiff to cut them and claim the cost of such cutting from the defendants. The plaintiff and defendants are neighbouring owners of land. For some reason which is not plain from the record, they have resorted to this most unusual form of litigation, I suppose, to give vent to their animosity. The plaintiff's complaint was that certain trees which had been growing upon the defendant's land for several years, namely mango trees and tamarind trees, were casting a shadow upon the plaintiff's land and some of the branches wore touching the ground, so that the shadow portion became less useful for agriculture and it was impossible to plough the parts where the branches touched the ground. Therefore the plaintiff sued for a mandatory injunction ordering the defendants to remove the overhanging branches and penetrating roots and for a permanent injunction preventing the defendants from allowing further branches and roots to invade the plaintiff's property. The defendants pleaded that for several generations the shadow of the trees had been falling upon the plaintiff's land, that the complaint was contrary to mamool and custom, that the plaintiff's allegations about his land becoming less useful for cultivation is unfounded and that therefore the plaintiff was entitled to no relief. The District Munsif framed three issues: (1) whether the defendants have acquired an easement right to have the roots and branches of their trees run into and overhang the plaintiff's property, (2) whether his suit is barred by limitation and (3) whether the custom. set up by the defendants is true and valid.

(2.) On all these issues, he found in favour of the plaintiff and against the defendants and therefore gave an injunction against the defendants ordering them to remove the existing branches. As to the roots, it appeared from the report of the Commissioner that the roots were very small and. that there was no material inconvenience and therefore no order was made. The District Munsif also did not give any injunction for the future because he held that the plaintiff was entitled to exercise his right, if he so chose, of removing any such branches or roots as and when they invaded his property. The defendants appealed to the Subordinate Judge who in the main upheld the District Munsif's decision but altered the decree formally by ordering the defendants to remove the overhanging branches within throe months and, on their default, allowing the plaintiff himself to do so and recover the expense from the defendants. The defendants have appealed to this Court and the learned advocate has again pressed the same points that were pressed. in the Courts below, namely : that the defendants are entitled by reason (1) of custom and (2) of prescription to keep the overhanging branches over the plaintiff's property. He has also urged that in any case an injunction to cut the branches should not have been granted but, only damages awarded as compensation.

(3.) The grounds as to custom and prescription are utterly unarguable. The leading English case on the subject is Lemmon V/s. Webb [1894] 3 Ch. 1, the elaborate judgment of the Court of Appeal and the judgment of the House of Lords which is reported in Lemmon V/s. Webb [1895] A.C. 1. This decision was followed in Hari Krishna Joshi V/s. Shankar Vithal [1895] 19 Bom. 420 where after setting out in extenso the judgment of the Court of Appeal, a bench of the Bombay High Court rejected the plea that a prescriptive right to keep the overhanging branches on one's neighbour's land could be acquired by any number of years of such overhanging and declared the plaintiff's right to cut away the branches. In Vishnu Jagannath V/s. Vasudev Raghunath [1919] 43 Bom. 164 a similar decision was given and it was also added that the plaintiff was entitled to an injunction to remove the overhanging branches though he may not be able to prove any damages. That also was a case of trees of a neighbouring owner overhanging another's land. In Someshwar Jethalal V/s. Chunilal Nageshwar [1920] 44 Bom. 605 a similar question arose as to a tree which was standing not entirely on the land of the neighbour but on the ridge between the two holdings, the tree itself belonging to the defendant. In those circumstances, it was held that it was not permissible to the plaintiff to out off the overhanging branches or the roots of the tree, because it was at least in part a case of another man's tree growing on one's own land. Such cases are frequent in the southern part of this Presidency, and where that is so, the owner of the land would not be entitled to cut off the branches and roots of the defendant's tree simply because, if that were allowed, there would be an end of the defendant's tree.