Nitya Nand Pathak vs Patiram Bari and Others

Kamla Sahai, J.—This appeal by the plaintiff arises out of a suit for a declaration that a mahua tree, belonging to the defendants, had

branches overhanging his house and well on plot No. 1188 in village Tilouthu. and tha thet defendanls had no right to keep that tree standing as it

was, as well as for an injunction directing the defendants to cut and remove the mahua tree or in the alternative, to cut and remove the overhanging

brunches.

Shortly stated, the plaintiff''s case is that he purchased 2 and a half kathas of land out of plot No 1188, which has a total area of 1.30 acres, in

1355 Fasli, and that he purchased another 1 katha of land out of the same plot in 1358. A mahua tree, standing on the same plot and belonging to

the defendants, has branches overhanging the land purchased by the plaintiff in such a way that they damage the plaintiff''s house and well which

are also in danger in case the tree falls.

The defendants"" case, in short, is that the mahua tree has stood where it stands for a long time, and that the plaintiff deliberately constructed his

house under the branches of the mahua tree, knowing full well the consequences of such construction. Hence, he is not entitled to the relief claimed

by him.

The Courts below have held that the tree was a sufficiently old one at the time when the plaintiff took settlement of two and a half kathas of land

out of plot No. 1188, that the tree is standing in the same position in which it has been standing for the last twenty years or so. and that the

branches of the mahua tree were overhanging the land when, and on which, the plaintiff constructed his house. On these findings, they have held

that the plaintiff is not entitled to a decree as claimed by him.

Appearing on behalf of the appellant. Mr. Sarwar Ali has argued that the defendants cannot acquire a right to get the branches of a tree to

overhang upon the plaintiff''s land. He has urged that, even if the plaintiff had not constructed his house where he did construct it, he would have

been entitled to a decree for removal of the branches of the tree which overhung his land. In my judgment, there is substance in this argument, and

it must prevail.

When the branches of a tree belong ing to one person spread over or overhang the land of another, it is a nuisance so far as the latter is

concerned. It is not possible to acquire a right by prescription to perpetuate a nuisance. It amounts to an invasion of the property of the person on

whose land the branches over hang, and he is certainly entitled to a decree for removal of those branches.

In Lemmon v. Webb 1895 A. C. 1, it was held by the House of Lords that, when branches of a tree, belonging to one person, overhang the

land of another, the latter is entitled to cut the branches so far as they overhang. though they have been there for more than twenty years, and that

he can do so even without giving notice to the owner of the tree.

In Hari Krishna Joshi v. Shankar Vithal ILR 19 Bom 420, it was held that a person was entitled to cut away the branches which overhang his

land, though they had been so overhanging for more than forty years.

Similar views were expressed in Gurusami Raja and Others Vs. Perumal Raja, .

It is manifest that the defendants cannot be field to have acquired any right to keep the branches of their mahua tree overhanging the plaintiff''s

land, irrespective of whether his house or well stands on it. That being so, the plaintiff is certainly entitled to get a decree for removal of the

branches of the mahua tree which overhang his land.

In the result, 1 allow the appeal, and set aside the decree of the Courts below. The suit will be decreed, and the plaintiff will get a declaration

that the defendants have no right to keep the branches of their tree overhanging the land of the plaintiff. A direction will also issue to the defendants

to cut and remove the branches of the tree, which overhang the plain tiff''s land, within three months from today. If the defendants do not

themselves cut and remove the branches, the plaintiff will be entitl ed to get them cut and removed through the intervention of the Court at the cost

of the defendants. The parties will bear their own costs throughout.