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2006 DIGILAW 571 (KER)

Enose Justus, Thulasi Vilasom, Enchacode v. Yohannan Thomas, Mercy Bhavan, Enchacode

2006-08-29

K.S.RADHAKRISHNAN

body2006
Judgment :- Boundaries of properties are generally man made and can be classified as natural and artificial. Halsbury’s Laws of England, Fourth Edition, Page 390 states that a boundary is an imaginary line which marks the confines or line of division of two contiguous parcels of land. Ownership of trees standing or growing upon the boundary of the properties of two adjoining owners depends upon the question who planted or sowed the tree. Littledale, J. in Holder v. Coates (1827), M. & M. 112 ruled that the tree belongs to the owner in whose ground the tree was first sown or planted. In Lemmon v. Webb, (1894) 3 Ch. 1 at page 20 held that if the roots subsequently spread to the adjoining land that will not affect the ownership. In Holder v. Coates (supra) it has been held that where it is not known who planted the tree the ownership will depend upon the situation of the body of the tree. In Masters v. Pollie (1620), 2 Rolle, 141; Lemmon v. Webb (supra) held that if the tree is situate equally between the two properties, in the absence of evidence of ownership to the contrary, the tree will be presumed to belong to both adjoining owners as tenants in common. Referring to the above mentioned decisions A.J. Hunt in his book “Boundaries, Walls and Fences”, Sixth Edition concluded as follows: “The true criterion as to ownership of a boundary tree lies in the question of fact, where was the tree first planted? If it can be ascertained as a fact that the tree was planted in one owner’s land then the gradual growth of the trunk roots and branches resulting in an encroachment upon the neighbour’s property does not affect the ownership of the tree. This appears to follow from the dicta of Littledale, J. in Holder v. Coates cited above. On the other hand, if it cannot be so ascertained, inasmuch as the tree must belong to someone, yet neither owner can reasonably be preferred to the other, the only possible solution is to regard the tree as the common property of both, upon the not unreasonable presumption that when two owners have planted a tree exactly on the boundary, they intend the tree to continue the common property of them both. Finally, it is conceived that the situation of the trunk roots and branches is only material for finding the fact of the situation of the original planting”. The author has also concluded that no easement can be acquired entitling the alleged dominant owner to prevent the servant owner interfering with the roots and branches of the trees of the former which encroach upon or overhang the land of the latter. It is further stated that is at any rate clear that there is an obvious objection to the prescriptive acquisition of such a right. As regards the roots, the enjoyment of the right would be secret and undisclosed, a kind of enjoyment which will not support a prescriptive claim. In Halsbury’s Laws of England, Forth Edition, Volume 4(1) at page 425, Trees and Fences, it is stated that the ownership of a tree on a boundary will be a question of fact in each case but such a tree will prima facie belong to the owner of the land on which it was planted. Where ownership is disputed, the topping and lopping of a tree will be evidence of acts of ownership. It has been held that a tree planted right on a boundary which then extend its trunk and roots over the boundary was owned in common by the two landowners; but the better view is that such a tree remains in the ownership of the land on which it was plated even when the trunk, roots and branches extend into the adjoining property. In Davey v. Harrow Corporation (1957) 2 All ER 305 at 308 it has been held when ownership is disputed, the topping and lopping of a tree will be evidence of acts of ownership. No right to have trees overhanging the land of another, or with their roots encroaching, can be acquired by prescription, since the trees grow from year to year. Reference may also be made to the decision of the Court of Appeal in Elliott v. London Borough of Islington (1991) 1 EGLR 167 wherein also identical view was taken. No right to have trees overhanging the land of another, or with their roots encroaching, can be acquired by prescription, since the trees grow from year to year. Reference may also be made to the decision of the Court of Appeal in Elliott v. London Borough of Islington (1991) 1 EGLR 167 wherein also identical view was taken. A learned Judge of this Court in Achuthan v. Sumithra (1987) 1 KLT 457 has taken the view that if it can be found with a reasonable amount of certainly, as a fact that the tree was planted in one owner’s land then the gradual growth of the trunk, roots and branches, which leads to trench upon the neighbour’s property does not affect the ownership of the tree. 2. We may examine the facts of this case in the light of the above mentioned judicial principles. Dispute is regarding ownership of an anjili’ tree standing on the boundary of the properties of two adjoining owners who are judgment debtors and decree holders in OS.No.11 of 1979 of Munsiff Court, Nedumangad. The decree holders in OS.No.11 of 1979 were allowed to put up a boundary on the CD line in the plan annexed to the decree dated 28-2-1983. Original decree holder died and respondents/additional decree holders 2 to 5 are his legal heirs. For the purpose of putting up a boundary on CD line the court deputed a commissioner in EP.153/94. Village Officer, Veeranakavu was also appointed to assist the commissioner. Boundary was put up by the commissioner after identifying the same with the help of the village officer. C1 is the report of the commissioner. Revision petitioner then filed EA.238/96 for dismantling the boundary put up by the commissioner stating that it was put up in contravention of the decree and also for an injunction restraining the respondents from cutting and removing the ‘anjili’ tree and for allowing the petitioner to cut and remove the same. Petitioner stated that the commissioner has deliberately put up a boundary in such a manner so as to exclude the anjili’ tree standing in the petitioner’s property. Petitioner referred to certified copy of the commission report in OS.693 of 1989, which was a suit between the petitioner and the Panchayat and contended that commission report would clearly indicate that the ‘anjili’ tree in question stands in his property. 3. Petitioner referred to certified copy of the commission report in OS.693 of 1989, which was a suit between the petitioner and the Panchayat and contended that commission report would clearly indicate that the ‘anjili’ tree in question stands in his property. 3. Petition was resisted by respondents 2 to 5 praying for dismissal of the petition. It was stated that the boundary was put up by the commissioner with the assistance of the village officer in accordance with law. It was also pointed out that petitioner had intimidated the commissioner and consequently they had to obtain police aid for putting up the boundary through CD line. Further, it was also stated that the anjili’ tree standing in the western side of CD line was cut and removed by the petitioner and the commissioner had not put up boundary annexing any portions of the petitioner’s property. Further it was also stated that respondents were not parties to O.S.693/89 and hence the commission report is not binding on them. 4. Petition got himself examined as PW-1. PWs.2 and 3 were also examined. Exts.A1 to A2(a) were produced. C1 is the commission report. Court below noticed that the commission report would indicate that 3/4th portion of the anjili’ tree is situated in the respondents’ property and the remaining portion in the petitioner’s property and boundary was put up accordingly. Court found that even though the anjili’ tree was found to be standing in the petitioner’s property as per the commission report prepared in the year 1981 the tree has grown up considerably. About 15 years have elapsed and 3/4th portion of the anjili’ tree is at present standing in the respondents’ property and 1/4th in the petitioners’ property. Court found that as per commission report the disputed tree is standing in the boundary and during the course of its growth the circumference of the tree crossed the boundary and extended to the respondents’ property. Court concluded that since respondents being the owners in possession of immovable property on the eastern side of the petitioner’s property they acquire right over whatever addition made to their property by natural growth and accretion. Court concluded that so much portion of the tree which comes into the portion of respondents’ property is to be considered attached to their land which resulted in acquisition of joint right over the anjili’ tree by the respondents along with the petitioner. Court concluded that so much portion of the tree which comes into the portion of respondents’ property is to be considered attached to their land which resulted in acquisition of joint right over the anjili’ tree by the respondents along with the petitioner. Court therefore took the view that since respondents also having right over the tree they cannot be injuncted in detriment to their right. Holding so, the prayer for injunction was refused. Aggrieved by the same this revision petition is preferred. 5. Sri. R.S. Kalkura, counsel appearing for the revision petitioner submitted that the court below has committed an error in holding that since 3/4th portion of the tree stands in the property of the respondents, they have ownership over those portions of the tree. Counsel submitted C1 commission report would clearly show that the anjili’ tree has its roots in the petitioner’s property. The mere fact that the tree has grown up due to passage of time and encroached upon the property of the respondents would not confer any right over the anjili’ tree in question. Counsel placed considerable reliance on the judgment of a learned single judge in Achuthan v. Sumitra, 1987 (1) KLT 457 and submitted that the first true test to determine the ownership of a boundary tree lies in the question where was the tree first planted. Counsel appearing for the respondents on the other hand contended that there is no illegality in the order passed by the court below. Counsel submitted that 3/4th portion of the anjili’ tree stands in the respondents’ property and the petitioner has only 1/4th right of the property and hence no injunction can be issued against a co-owner. Counsel therefore wanted dismissal of the civil revision petition. 6. Petitioner as PW-1 has stated that the anjili’ tree stood in his property. Commissioner has found out that 3/4th portion of the anjili’ tree is in the respondents’ property and the remaining portion in the petitioner’s property. Commission report in the trial stage was prepared in the year 1981. The present commissioner visited the property to put up the boundary in 1996. Commissioner has found out that 3/4th portion of the anjili’ tree is in the respondents’ property and the remaining portion in the petitioner’s property. Commission report in the trial stage was prepared in the year 1981. The present commissioner visited the property to put up the boundary in 1996. Court below has found that the ‘anjili’ tree was found to be standing in the petitioner’s property in the commission report prepared during the trial stage, now about 15 years have elapsed thereafter, and the tree has considerably grown and it cannot be said that the tree with its present size is still standing in the property of the petitioner alone and 3/4th portion is now in the property of the respondents and only 1/4th portion in the petitioner’s property. I am of the view, the more acceptable view is that the tree belongs to the owner of the land on which it was planted, even thought the tree grew up and crossed the boundary of the nearby property owner because the tree has its roots there. That would indicate that the tree belongs to the person who is the owner of the property on the western side of the CD line. I am of the view that the court below is not justified in not granting the injunction as prayed for by the petitioner. CRP is therefore allowed and EA.238/96 is allowed as prayed for. 7. Counsel appearing on either side has pointed out that while the matter was pending, the Tahsildar has passed an order No.5116/87/E2 dated 26-11-1999, canceling assignment of 30 cents of land in survey No.294/5 of Veeranakavu Village which is subject matter of the present civil revision petition. Petitioner claims his right, title and ownership on the basis of an assignment as per LA.88/78. Now that has been cancelled by the Tahsildar by order dated 26-11-1999. Petitioner herein filed appeal before the Revenue Divisional Officer against the said order and the appeal was rejected by the RDO by order No.B.21424/99 dated 30-6-2004. On the strength of the above mentioned order it is pointed out that the petitioner has no right over the property on the western side of CD line and also cannot claim any ownership over the anjili’ tree in question. I make it clear that I have decided only the question as to whom the ownership over the anjili tree is vested. I make it clear that I have decided only the question as to whom the ownership over the anjili tree is vested. If ultimately it is found that the property belongs to the State naturally the State can claim ownership over the anjili tree in question. I make it clear that even though I have allowed the CRP, that would not affect the right of the State claiming ownership over the ‘anjili’ tree in question. In other words, the order in CRP will subject to the final orders to be passed in the proceedings in order No.5116/87/E2 dated 26-11-1999.