Suntharam Et Al V. Sinnatamby Et Al

1935   Present  :  Dalton S.P.J. and Koch J.

SUNTHARAM et al. v. SINNATAMBY et al.

151-C. R. Mallakam, 8,745.

Overhanging trees-Landowner's right to cut branches-Law in Jaffna- Cultivated fruit trees-Thesawalamai.

Under the Thesawalamai a landowner is not entitled to have the overhanging braches of a cultivated fruit tree growing on an adjoining land cut off.

CASE referred by Akbar J. to a Bench of two Judges.

Plaintiff and defendant are owners of adjoining lands in Jaffna. Branches of some jak trees in defendant's land overhang the plaintiff's land and render plaintiff's land unfit for tobacco plantations.

Plaintiff brought this action to have it declared that the overhanging branches should be cut off.

The learned Commissioner held that the case was covered by the decision Kandasamy v. Mailvaganam[1 3 Bal. Reports 64.]and dismissed the plaintiff's action.

S. J. V. Chelvanayagam, for plaintiffs, appellants.-The case of Kandasamy v. Mailvaganam (supra) has been wrongly decided-That decision is based on paragraph 3 of section III. of the Thesawalamai. Paragraph 3 of section III. speaks of the rights of ownership in overhanging branches and the fruits on those branches. It is silent on the rights of the owner of the land that is overhung to cut off the branches. The right to cut the overhanging branches is independent of the right of property in the branches themselves. If the owner

of the land that is overhung be also the owner of the overhanging branches, then the question of his right to cut will not arise, since the owner could do what he pleases with the branches that belong to him. It is when the owner of the land that is overhung is not the owner of the overhanging branches that the question arises as to whether he could cut the overhanging branches or not. This right to cut the overhanging branches is. really a right that flows from the ownership of the land underneath. The owner of land is also the owner of all the space above it. He has a right not to allow his neighbour to encroach on that space. All systems of law have considered this right from this point of view, viz., English law, the Roman-Dutch law, and the Indian law. They consider the overhanging branches as constituting a nuisance on the land over which they hang. If that be so we cannot go to the Thesawalamai to see what the law of nuisance in Ceylon is. It must be the same in Jaffna as elsewhere in Ceylon.

It is true that paragraph 3 of section III. of the Thesawalamai has a reference to the right to cut the overhanging branches of wild trees, but this is mentioned incidentally and has no connection with the subject-matter of section III. which purports to deal with rights of possession and of ownership. Moreover the mention of the right to cut the branches of wild trees does not logically lead to the inference that no right exists to cut the branches of cultivated -trees.

Counsel cited Lemon v. Webb[1 (1895) 6 A C p 1.] Joshi v. Ragunath Oka[2 43 Bombay 169.].

Manicavasagar, for defendants respondents.-Paragraph 3 of section III. must be taken as a whole.

Primarily it draws a distinction between fruits of cultivated trees and fruits of uncultivated trees.

But it deals with much more than the division of produce where a tree hangs over the ground of a neighbour.

The second paragraph of section III. specifically gives the right to a neighbour to cut off the branches of uncultivated trees that overhang his ground: the relevant passage reads thus:

"And he (i.e., the neighbour) is even at liberty to cut the branches if they hinder him, and sell the same without the consent of the owner of the ground on which the trees stand."

It is not correct to argue that the Thesawalamai is silent on this right to cut off branches of overhanging trees.

The argument of counsel for appellant will only apply if the Thesawalamai had no provision in respect of the right which a neig

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