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2025 Supreme(Online)(Ker) 41753
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Easwaran S., J
SULOCHANA – Appellant
Versus
SEENATH – Respondent
Regular Second Appeal | RSA NO. 891 OF 2020
For the Appellants/Petitioners: Sri.Harish Gopinath, Sri.Akhil Raj B.
For the Respondents: Sri.S.Jathin Das, Sri.T.A.Prakash, Sri.Sumodh Madhavan Nair, Sri.Arun S., Adv. Meera S. Gopan
Mandatory injunctions can be granted to remove nuisances that pose imminent danger to property, regardless of prior claims of encroachment.
Headnote:(A) Relevant Code: Code of Civil Procedure, 1908 - Section 100 - Mandatory injunction - Suit for mandatory injunction was filed by the plaintiff against the defendant for causing nuisance due to the banyan tree overhanging the property; the trial court and appellate court ruled in favor of the plaintiff - The continuous threat posed by the tree warranted a mandatory injunction despite the defendant's claims of encroachment. (Paras 6, 8, 11)
(B) Legal Principles: Courts find compelling evidence of nuisance from the overgrown tree sustaining damage to the plaintiff’s property, necessitating legal remedy. (Paras 7, 11)
Facts of the case:
The appellant challenges a mandatory injunction decree ordering the removal of a banyan tree causing damage to the plaintiff's building, with claims of prior encroachment discussed. (Paras 2, 5)
Findings of Court:
The court upheld that the tree posed an immediate threat that justified the injunction, dismissing the appeal based on substantial evidence of nuisance. (Paras 8, 11)
Issues: The critical legal questions pertained to the necessity and extent of the mandatory injunction awarded to the plaintiff based on nuisance claims. (Para 6)
Ratio Decidendi: Mandatory injunctions may be justified in case of continuing nuisance and imminent danger, and encroachment claims do not exclude defendant's liability to remove a nuisance tree. (Paras 11)
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. detailed understanding of property damage and nuisance. (Para 2 , 4) |
| 2. legal justification for mandatory injunction based on imminent danger. (Para 5 , 11) |
| 3. questions of law regarding the necessity of tree removal due to nuisance. (Para 6 , 8) |
| 4. arguments highlighting the position of the tree as a significant threat. (Para 9 , 10) |
JUDGMENT
The defendant in a suit for mandatory and prohibitory injunction is the appellant. The brief facts necessary for the disposal of the appeal are as follows:
2. An extent of 1 cent and 832 sq.links of land and a building belongs to the plaintiff. The right, title and interest were derived as per sale deed No.2634/2003. The defendant has been causing serious damage to the wall in the plaint schedule property by various acts. Further, the branches of a banyan tree belonging to the defendant are hanging over the roof of the plaintiff and thus, the plaintiff had no remedy but to move the suit for mandatory injunction. The defendant resisted the claim and contended that the building was constructed by the predecessor of plaintiff encroaching into the defendant’s property. The predecessor of the plaintiff filed O.S 220/1991 seeking injunction restraining the defendant from causing obstruction in constructing the said building. The suit was later dismissed and later the predecessor approached the High Court wherein he managed to obtain permission to proceed with the construction on an undertaking that the area encroached by him would be demolished. It is during the pendency of the second appeal RSA 31/2017 that, the plaintiff purchased the plaint schedule property. Later, the Paravoor Municipality passed an order to cut and remove the branches of the banyan trees and the order of the Municipality was set aside by the Tribunal for Local Self Government Institutions in R.P. 87/2012 dated 03.04.2013.
3. On behalf of the plaintiff, Ext.A1 was marked and PW1 and PW2 were examined. Ext.C1 series of report and mahazar were marked on the side of plaintiff. On behalf of defendant, Exts.B1 to B6 were marked and DW1 and DW2 were examined.
4. The trial court on the basis of the report of the Advocate Commissioner found that the property was transferred to the plaintiff pendente lite, but no suit was filed to set aside the document of transfer. It was further found that, as per the report of the Advocate Commissioner evidently showed that the roots of the banyan tree have penetrated in the basement of the house, which caused breakage and accordingly the trial court decreed the suit to cut and remove the banyan tree causing nuisance and damage to the property of the plaintiff.
5. Aggrieved by the judgment and decree, the defendant preferred AS No.63/2017 before the IIIrd Additional District Court, Kollam. By judgment and decree dated 2.11.2019, the appeal was dismissed, and hence the present appeal.
6. When the appeal was admitted to file, this Court framed the following substantial questions of law:
“i) Whether both the courts erred in directing the defendant to cut and remove the entire tree when the allegation of the plaintiff was only that the branches were overhanging into the property causing nuisance?
(ii) Did the courts go wrong in granting a decree of mandatory injunction without properly comprehending the law on the point?”
7. Heard Sri.Harish Gopinath, the learned counsel for the appellant and Sri.S.Jathin Das, the learned counsel for the respondent and Smt.Meera.S.Gopan, the Advocate Commissioner appointed by this Court.
8. Before going into the rival submissions raised across the Bar, the appeal was taken up for an expeditious hearing, especially in the light of the compelling facts reported by the Advocate Commissioner appointed by this Court at the request of the respondent/plaintiff. This Court appointed the Advocate Commissioner basically to assert the status of the banyan tree lying in the plaint schedule property. The Advocate Commissioner was requested to verify the status of the ban
