The absence of a legal obligation based solely on religious significance and the requirement for a duty enforceable by law to grant a perpetual injunction.

JUDGMENT

1. This is an appeal by the plaintiffs in a suit for permanent injunction to restrain the execution of a decree obtained by the first defendant against the second defendant for the removal of a nim tree. The tree stands on the boundary wall of the land of the second defendant, and its roots have penetrated into the adjoining wall of the house of the first defendant. The consequence has been that the wall has been cracked and the house has been injured. In these circumstances, the first defendant instituted a suit against the second defendant for a mandatory injunction for the removal of the tree and for damages. On the 20th May 1917 that suit was decreed, and the first defendant became entitled to remove the tree unless the second defendant removed it within fifteen days. That decree was affirmed on appeal on the 22nd January 1919. Thereupon, the plaintiffs instituted the present suit on the allegation that the tree was a sacred tree, that it had been duly consecrated, that it was worshipped by the orthodox Hindu people of the locality, and that its removal would be an invasion of their religion and would offend their religious sentiments. The Court of first instance decreed the suit, granted a permanent injunction and authorised the first defendant to take out within a month bricks from the wall on which the tree stands, thereby causing an open space between tine tree and his wall, and place there an iron-plate between the tree and the walls to prevent penetration of roots into his wall in the future. Upon appeal, the Subordinate Judge has reversed this derision and dismissed the suit. In support of the present appeal, the plaintiffs have contended that a permanent in junction should be granted to prevent removal of the sacred tree in execution of the decree.

2. There is no room for controversy that the decree was made by a Court of competent jurisdiction and was based on well established legal principles. The decision in Lakshmi Narain v. Tara Prosanna 31 C. 944 : 8 C. W. N. 710. affirms the proposition that as every owner of land is under an obligation not to allow the branches of his tree to grow so as to overhang, or the roots of his tree to extend so as to penetrate, his neighbours land to the detriment of the latter, in case of breach of such an obligation it is open to the court to grant a mandatory injunction for the removal of the nuisance, u/s 55 of the Specific Belief Act, In support of this view, reference was made to the decision of the House of Lords in Lemmon v. Webb (1895) App. Cas. 1 : 64 L. J. Ch. 205 : 11 R. 116 : 71 L. T.647 : 59 J. P. 564. which affirmed that of the court of Appeal in Lemmon v. Webb (1894) 3 Ch. 1 : 63 L. J. Ch 570. The view taken there had been propounded three centuries earlier in Norris v. Baker (1613) 1 Roll. Rep. 393 : 81 E. R. 559. (See also Viner's Abridgment, Volume XX, page 417). The same view has been affirmed directly or by implication in subsequent cases; amongst these may be mentioned Smith v. Giddy (1904) 2 K. R. 448: 73 L. J. K. B. 894 : 91. L. T. 296 : 53 W. R. 207: 20 T. L. R. 596 Cheater v. Cater (1918) 1 K. B. 247 : 82 L. J. K. B. 449. Mills v. Brooker (1919) 1 K. B. 555 : 83 L. J. K. B. 950 : 121 L. T. 254 : 17 L. G. R. 238 : 63. S. J. 431 : 35 T. L. R. 261. This is by no means a singular rule of law and in this connection reference may be made to the Code Napoleon tr. Barrett: Article 672 provided as follows:

He whose property the branches of a neighbour's trees overhang, may force the latter to cut such branches. If the roots extend into his heritage, he has the right of cutting them himself." Article 673 was in these terms: "Trees growing in a party hedge are party like the hedge; and cash of the two owners has the right of requiring that they be cut down." Article 673 of the French civil Code (tr. Wright) contains the following provision: "A person over whose property the branches of a neighbour's trees grow can compel such neighbour to cut them, Fruit that f