JUDGMENT T.P. Naik, J.—The respondent (plaintiff) filed a suit claiming from the appellant (defendant) Rs. 100 as damages and a mandatory injunction ordering him (defendant) to cut and remove a Nim tree standing adjacent to the plaintiff?s will, inter alia, on the allegations that the Nim tree; which had been planted by the defendant adjacent to his wall about 17-18 years ago, had so grown up in dimensions that its roots had now started causing damage to his wall by entering into the foundation of his wall and causing big cracks in it. 2. The suit has been decreed by the Courts below on the following findings:? (1) That the Nim tree was planted bf the defendant close to the wall of the plaintiff at a time when the of the plaintiff was already in existence. (2) That the roots of the Nim tree had entered the foundation of the wall of the plaintiff and had caused cracks in it. (3) That the money value of the damage so far caused was Rs. 30. (4) That the tree must be cut or else it would continue to cause damage to the wall. 3. The defendant now appeals. 4. The first contention of the learned counsel for the appellant (defendant) is that there was no evidence for the finding that the Nim tree was the cause of cracks in the wall of the plaintiff. I do not agree. Besides Rajkuwar (D. W. 1), who says that the roots of the Nim tree have penetrated the foundation of the wall of the plaintiff causing cracks to appear in it, there is also the evidence of Yantram (D. W. 3) who was the Commissioner appointed by the Court for the preparation of a map of the wall and who says that the roots of the Nim tree have entered the foundation of the wall, that they are covered with earth and that the fact of the roots entering the foundation was not verified by him by digging around the wall because the defendant had admitted it. On this evidence the Courts below could reasonably find that the proximate cause for the damage to the wait of the plaintiff was the growing up of the defendant's Nim tree. 5. On this evidence the Courts below could reasonably find that the proximate cause for the damage to the wait of the plaintiff was the growing up of the defendant's Nim tree. 5. The question then is whether the defendant could be held liable for the damage Caused to the wall of the plaintiff by his Nim tree and whether in the event of proof that the Nim tree had damaged the wall, he (the defendant) could be ordered to cut it down. 6. As a general rule it may be said that an occupier of land may do what he likes on it; notwithstanding that he causes damage to his neighbour, Law of nuisance, however, has grafted exceptions on this right, which are expressed in the latin maxim, ?sic utera tue ut alienum non laedas' (so use your own property as not to injure your neighbours). Applying this principle it has been held that a person may not allow his tree to grow in such a way as to permit the overhanging branches to shade his neighbour?s land, nor may he allow the roots of his tree to burrow and grow into his neighbour?s sub-soil. 7. This liability has been supported on the law of nuisance and not on the law of trespass, so that it is independent of the requisite intention which is always necessary to support trespass. Contrasting the difference. ?Clerk and Lindsell on Torts', at p. 579, say:- ?The distinction between trespass and nuisance is the old distinction between trespass and case. Trespass is a direct entry on the land of another but in nuisance the entry is only consequential For example, to build a wall partly on the land of another is a trespass, but to build on one?s own land a wall which through disrepair falls on to another's land is a nuisance. Again, trespass being an invasion of a legal right, is always actionable without proof of damage. On the other hand, in many cases nuisance is not actionable without actual damage." "It is a nuisance and not a trespass if the branches of a tree, growing on the land of one man, overhang his neighbour?s land, or if the roots burrow into his land and damage his buildings.? On the other hand, in many cases nuisance is not actionable without actual damage." "It is a nuisance and not a trespass if the branches of a tree, growing on the land of one man, overhang his neighbour?s land, or if the roots burrow into his land and damage his buildings.? The learned authors have also pointed out that a person cannot acquire a prescriptive right for his trees to overhang or for the roots of his trees to grow into his neighbour?s land apparently on the ground that there is a perpetual change in the quantity of inconvenience caused so that the two essential ingredients, i. e., of certainty and of uniformity, to acquire the prescriptive right are lacking. The right to compensation may, however, be lost by acquiscence. 8. Speaking on the subject, Harman, J. in Mc Combe vs. Read (1955) 2 All. E. R. 458 at p. 463 said? ?It is very old law that if my neighbour's trees encroach on my ground, either by overhanging boughs or by undermining roots, I may cut the boughs or the roots so far as they are on my side of the boundary. In Lemmon vs. Webb (1894) 3 Ch. 1, it was pointed out in the Court of Appeal that this kind of encroachment is not a trespass which may ripen into a right in the course of time, but is a nuisance which raises a cause of action only on proof of damage. Moreover, the case decides that the nuisance may be abated without notice. Following on this, a Divisional Court in Smith vs. Giddy (1904) 2 K. B. 448, granted a new trial where a County Court Judge had held that the only remedy of an adjoining landowner was to lop the trees and that an action on the case would not lie. It is clear, therefore, that an action for damages will lie in these circumstances, but there appears to be no English decision where an injunction his been granted. In Butler vs. Standard Telephones & Cables, Ltd. (1940) I All. E R. 121, the plaintiffs claimed damages for the abstraction of water from under their houses by the roots of popular trees and were held entitled to them. It is, however, noticeable that in that action the plaintiffs claimed an injunction but, apparently, abandoned that part of the claim at the trial. E R. 121, the plaintiffs claimed damages for the abstraction of water from under their houses by the roots of popular trees and were held entitled to them. It is, however, noticeable that in that action the plaintiffs claimed an injunction but, apparently, abandoned that part of the claim at the trial. Lewis, J., however, in his judgment (1940/I All E. R. at p. 130) mentioned with approval an Irish decision. Middleton vs. Humphries (1913) 47 ILT 160, where the Chancery Judge in Ireland (Ro. s. J.) apparently had no doubt that an injunction could be granted. In my opinion this must be right. If an action on the case will lie, then the remedy of injunction must be available if the nuisance be a continuing one, as is clearly the case here. It could not be right to throw on the plaintiff the burden of watching for further subterranean encroachment. In my judgment, however, the plaintiff is not entitled to an unqualified injunction, for he has no remedy unless a nuisance be caused. The injunction will, therefore, be to restrain the defendants from allowing the roots from any tree on their property so to encroach the plaintiff's land as to cause a nuisance.? 9. The act of the defendant in the instant case is a private nuisance because by premising the Nim tree to stand and grow on his own land which he is lawfully entitled to do, he causes consequences which extend to the land of his neighbour, in that the roots of the tree encroach upon his neighbour?s sub-soil and cause physical damage to his property. There can thus be no doubt that the plaintiff is entitled to damages as well as to an injunction restraining the defendant from allowing the roots from his Nim tree to encroach on the plaintiff's land so as to cause a nuisance. 10. The claim for damages was thus rightly decreed, but as regards the decree directing the cutting and removal of the tree by a fixed date, I am of opinion that it shall have to be modified by substituting in its place a decree restraining the defendant from allowing the roots of the Nim tree on his property to encroach on tile plaintiff's sub-soil so as to cause a nuisance. 11. Subject to the aforesaid modification, the appeal fails and is dismissed with costs. Final Result : Dismissed