Judgment :- 1. This revision petition is directed against the judgment and order of the learned First Class Magistrate of Ponkunnam, convicting the revision petitioner for committing an offence of mischief, punishable under S.427, Indian Penal Code, and sentencing him to pay a fine of Rs. 15/- and in default to undergo simple imprisonment for a period of 10 days. The revision petitioner and the counter-petitioner, who was the complainant, before the lower court, were adjoining land owners and the case against the revision petitioner was that he committed mischief by cutting off a few branches of a cashewnut tree which stood on the complainant's land near the boundary. The fact that the petitioner cut away a few branches of the tree was not disputed, but the defence to the charge was that the act amounted to no offence as the petitioner was within his rights in cutting the branches which overhung his land. This aspect of the case is not adverted to at all in the lower court's judgment though it is clear from the records that the revision petitioner's case was that the branches he cut off were those which overhung his land. 2. S.79 of the Indian Penal Code states inter alia that nothing is an offence which is done by any person who is justified by law in doing it. The answers given in cross-examination by Pws. 2,3 and 7, who among other witnesses prove the occurrence complained of, definitely show that the branches which were cut by revision petitioner were those that overhung his land, that when they were cut they fell into his land and that they were remaining there even on the third day after the occurrence when a Commissioner deputed by the court to inspect the site to prepare a mahazar went there. The evidence in the case also shows that underneath the overhanging branches the revision petitioner had planted tapioca plants. 3. It is settled taw that an owner of land can cut the branches of trees which overhang on his land. In Salmond on Torts (11th Edition) at p. 219 it is seen stated: "It is lawful for any occupier of land, or for any other person by the authority of the occupier, to abate (i.e., to terminate by his own act) any nuisance by which that land is injuriously affected. In Salmond on Torts (11th Edition) at p. 219 it is seen stated: "It is lawful for any occupier of land, or for any other person by the authority of the occupier, to abate (i.e., to terminate by his own act) any nuisance by which that land is injuriously affected. Thus the occupier of land may cut off the overhanging branches of his neighbour's trees, or sever roots which have spread from these trees into his own land Subject to certain requirements as to prior notice, which will be considered later, the right of abatement extends to the cases in which it is necessary for the abator to enter upon the land of the other party, no less than to those cases in which he can attain his purpose by acts done exclusively on his own property". The question as to the necessity of notice before abatement is discussed at p. 221 and what is stated there is:- "The question of the necessity of notice before abatement is one involved in some uncertainty. It is clear, however, that there are at least two cases, in which no notice is required; (1) When there is no entry on the land of the other party, e.g., cutting roots and branches; (2)". The case Salmond chiefly relies upon for these propositions of law is a decision of House of Lords reported as Lemmon v. Webb. (1895) AC 1. For our present purpose we need quote only the head note to that case which correctly sets out the substance of the decision. The headnote reads: "The owner of land which is overhung by trees growing on his neighbour's land is entitled, without notice, if he does not trespass on his neighbour's land to cut the branches so far as they overhang, though they have done so for more than twenty years". That the law in India is not any the different can be found from decided cases. I shall first quote a passage from a decision of Geidt and Mookerjee, JJ. in Lekshmi Narain Banerjee v. Tara Prosanna Banerjee (1904) ILR 31 Calcutta 944. That the law in India is not any the different can be found from decided cases. I shall first quote a passage from a decision of Geidt and Mookerjee, JJ. in Lekshmi Narain Banerjee v. Tara Prosanna Banerjee (1904) ILR 31 Calcutta 944. The quotation which is from p. 948 reads: "It cannot be disputed that the owner of the land, which is overhung by trees growing on his neighbour's land, may without notice, if he does not trespass on his neighbour's land, cut the branches so far as they overhang and however long previously they have overhung his land; Lemmon v. Webb-- (1895) AC 1, Hari Krishna Joshi v. Shankar Vithal-- (1894) ILR 19 Bom. 420. It is equally clear that no prescriptive right can be acquired to compel a man to submit to the penetration of his land by the roots of a tree planted on his neighbour's soil and a man may consequently abate any such encroachment upon his property by cutting the roots in the same manner that he may remove the overhanging branches: Gale on Easements, 7th edition, p. 445; Norris v. Baker-- (1613) 1 Roll. Rep. 393. It follows, therefore, that the party who is so affected, may, ask for a mandatory injunction for, in the language of Lord Coke, there are two ways to redress a nuisance, one by action, and that is to recover damages and have judgment that the nuisance shall be removed, cast down or abated, as the case requireth; or the party grieved may enter and abate the nuisance himself: Baten's Case-- (1610) 9 Rep. 53". The question of notice is irrelevant here inasmuch as the charge and the conviction have only been for committing mischief and not for trespass. In Vishnu Jagennath v. Vasudev Raghunath, (1919) ILR XLIII Bom. 164, the Bombay High Court reiterated the view which it expressed in (1894) ILR 19 Bombay 420 referred to in the extract from the Calcutta decision cited above. It was held there that a person is entitled to cut off those portions of the trees which overhung his land. The same view is taken by the Lahore and the Madras High Courts. The Lahore case is Gokal v. Hamira AIR 1936 Lahore 134 and there the Calcutta and the Bombay decisions cited above are referred to and followed. The Madras case is Rankaswami v. Arumuka AIR 1936 Madras 702. The same view is taken by the Lahore and the Madras High Courts. The Lahore case is Gokal v. Hamira AIR 1936 Lahore 134 and there the Calcutta and the Bombay decisions cited above are referred to and followed. The Madras case is Rankaswami v. Arumuka AIR 1936 Madras 702. One noteworthy feature in all the Indian cases cited here is that they follow the decision in Lemmon v. Webb. The decisions referred to, no doubt, refer to civil cases but I have pointed out that it is one of the 'General Exceptions' recognised by the Indian Penal Code that when a person is justified by law in doing an act the commission of that act cannot amount to an offence. In this view of the matter the judgment convicting the revision petitioner of the offence of mischief has to be set aside and I order accordingly. The fine, if paid, will be refunded.