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2011 DIGILAW 2067 (HP)

Jagat Singh v. Nain Singh

2011-04-06

V.K.AHUJA

body2011
JUDGMENT : V.K. Ahuja, J.:This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree passed by the learned District Judge, Sirmaur at Nahan, dated 12.6.2000, vide which the judgment and decree passed by the learned Sub Judge Ist Class, Court No.I, Paonta Sahib, dated 2.8.2000, was set aside. 2. Briefly stated, the facts of the case are that the respondent, hereinafter also referred to as the plaintiff, filed a suit for permanent injunction and for damages to the extent of Rs.500/- as against the appellant, hereinafter also referred to as the defendant. It was alleged that he is owner in possession of the land comprised in Khasra No.98 and 242/100 measuring 7 bighas 19 biswas situated in Village Kandela Adhwar, as detailed in the plaint. It was further alleged that there are number of trees of various varieties standing in the suit land, which were planted and grown by the plaintiff and there is a Ghasni also where the plaintiff grows the grass. It was further alleged that the land of the defendant also adjoins the suit land, which falls below the land of the plaintiff at a lower level. It was also alleged that the defendant interferes in the land of the plaintiff. On 11.2.1997, the defendant lit fire near the land of the plaintiff causing damage to six trees of Buel standing on the suit land and belonging to the plaintiff and accordingly, the plaintiff suffered a loss of Rs.300/-. It was further alleged that the defendant is still interfering in the land of the plaintiff and causing damage to the trees and grass, hence the suit for injunction and for recovery of Rs.500/- as damages filed by the plaintiff. 3. The defendant admitted in the written statement filed by him that the suit land and the land of the defendant comprising in Khasra No.101 measuring 5 bigha and 6 biswa are adjacent to one another on the same hilly slope. However, he admitted that the suit land is situated on the upper side while the land of the defendant is on lower side to the suit land in the same hilly slope. He also admitted that the plaintiff has grown various kinds of trees on the boundary line of the two lands. However, he admitted that the suit land is situated on the upper side while the land of the defendant is on lower side to the suit land in the same hilly slope. He also admitted that the plaintiff has grown various kinds of trees on the boundary line of the two lands. It was also pleaded that the land of the defendant is a cultivable land and in order to destroy the crop of the defendant, the plaintiff has allowed to grow the branches of his trees overhanging the land of the defendant. It was further pleaded that whenever the defendant requested the plaintiff to cut the overhanging branches, then the plaintiff picked up quarrels and threatened with civil and criminal litigation. It was also pleaded that the branches of the trees of the plaintiff are hanging over the land of the defendant to the extent of 45’-60’ on account of which the crops cannot be grown in the land of the defendant under the shadow of the branches of the trees of the plaintiff. He also pleaded that he is suffering damages to the tune of Rs.300/- in every crop season and denied that he caused any loss to the plaintiff. 3. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether the plaintiff has no cause of action? OPD 4. Whether the plaintiff has no locus-standi to file the present suit? OPD 5. Whether the defendant is entitled to the relief of mandatory and prohibitory injunction by way of counter claim, as alleged? OPD 6. Relief. 4. Parties led their evidence and the learned trial Court vide its impugned judgment and decree, decreed the suit of the plaintiff for permanent prohibitory injunction restraining the defendant from interfering over the suit land. The suit qua damages was dismissed. By way of mandatory injunction, the plaintiff was also directed to remove the offending branches of the trees situated in the suit land as per the report Ext. DX. The suit qua damages was dismissed. By way of mandatory injunction, the plaintiff was also directed to remove the offending branches of the trees situated in the suit land as per the report Ext. DX. On appeal, the learned District Judge, vide its impugned judgment and decree, partly allowed the appeal filed by the plaintiff and the counter claim made by the defendant was allowed to the extent that the plaintiff was directed to manage the trees existing on the suit land in such a manner as to cause no harm to the crop sown by the defendant. 5. The present appeal was admitted on the following substantial questions of law: “1. Whether the learned First Appellate Court is justified in ignoring the report of the Local Commissioner Ext.DX which specifically says that the branches of 15 trees are required to be removed by the plaintiff? 2. Whether the defendant in his counter claim is not entitled to the decree for mandatory injunction directing the plaintiff to lop, cut and remove all the branches of the trees overhanging on the defendant’s land?” 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. On appraisal of the record of the case, it is clear that the facts are not in dispute that the plaintiff had grown trees in his own land and his land is on the higher side while the land of the defendant is on the lower side. It is also clear that the trees grown in the suit land by the plaintiff are overhanging the land of the defendant with the result that the defendant may not have been in a position to grow crop on his own land. The report of the Local Commissioner Ext.DX shows that above the land of the defendant comprised in Khasra No.101, there is the land of the plaintiff in which 15 trees, out of which 13 are of Buel, one of Baheda and one of Harad, are standing and their branches are extending upto the distance of 20’-50’ and these branches have covered the crop of the defendant. 8. 8. The learned counsel for the appellant had relied upon the decision in P. Sheik Batcha Rowther and others versus Alagappan Servia, AIR 1959 Madras 12, wherein it was observed as under: “The owner of a tree has no right to allow its branches to overhang the land of his neighbour. If he does so the neighbour can cut the branches so long as he could do so without entering upon the land of the owner of the tree. He need not even give a notice to the owner. The owner of the tree cannot acquire any right by prescription to allow his branches to overhang because an old nuisance cannot by passage of time become a respectable nuisance. Merely because the previous owner did not object, perhaps due to his relationship with the owner of the tree, it cannot be said that there has been acquiescence and therefore the succeeding owner is estopped or prevented from claiming relief against the nuisance.” 9. Reliance was also placed upon the decision in Manikkam v. Kamala, AIR 1987 Kerala 72, wherein it was observed in para 7 as under: “A right to property protects the owner from any infringement of that right unless it is sanctioned by law. No man has thus a right to allow the branches of the trees in his land to overhand his neighbour’s property. The overhanging affects the neighbour’s land and curtails the reasonable user of that land. It is a continuing wrong in tort a nuisance, as long as the overhanging persists. This nuisance can be abated by the owner lopping the branches which extend over his land. If he does not exercise that right, he can very well approach a court to obtain the necessary relief for abating the nuisance. He can issue notice to the owner of the neighbouring land to cut and remove those offending branches. No right can arise by prescription to continue a nuisance. The overhanging of a branch of a tree does not constitute an occupation of the neihgbouring land and does no create a right. No such right accrues by mere lapse of time. The branches that exists now may not be the same branches that were in existence 20 years back; nor will they be in the same condition. The removal of those branches which had grown in the meantime thus does not affect any right. No such right accrues by mere lapse of time. The branches that exists now may not be the same branches that were in existence 20 years back; nor will they be in the same condition. The removal of those branches which had grown in the meantime thus does not affect any right. The owner of the tree acquired no right over the land of the neighbour simply because the branches of his trees extended over the neighbouring soil for any continuous length of time. The law does not countenance a prescriptive right to commit and continue a nuisance.” 10. Thus, it was submitted on the strength of these judgments that the law does not permit an owner of a tree to have a right by prescription to allow the branches of his trees to overhang over the land of another person. Therefore, it is clear that in view of the above decisions, the plaintiff has no right to allow the branches of the trees to overhang on the land of the defendant and he is required to cut the branches as and when they grow extending to the land of the defendant. In case the plaintiff does not do the same and continues causing loss to the land of the defendant, the defendant is within in his right to cut the branches himself after notice to the plaintiff. The counter claim was preferred by the defendant by filing a separate court fee and the relief in question was also mentioned in the written statement filed by the defendant. He had specifically claimed the relief of an injunction directing the plaintiff to cut and remove all the branches of the trees standing on the suit land overhanging the land of the plaintiff in Khasra No.101. 11. Accordingly, no infirmity can be found in the impugned judgment and decree passed by the learned District Judge granting the relief of permanent mandatory injunction as against the plaintiff and accordingly it is clarified that the plaintiff is required to cut the branches of the trees overhanging the land of the defendant and in case it is not done as and when these grow up, the defendant, after notice to the plaintiff, can cut the branches overhanging on his land, without entering upon the land of the plaintiff. 12. 12. In view of the above discussion, there is no merit in the appeal seeking modification of the impugned judgment and as such the appeal is dismissed accordingly. However, the parties are left to bear their own costs.