Nuisance due to overhanging of branches of trees.

This second appeal is directed against the decree and judgment of the learned Additional Subordinate Judge of Madurai in A.S. No. 67 of 1956 confirming the Decree and Judgment of the learned District Munsif of Melur in O.S. No. 27 of 1955. The respondent has filed a Memorandum of Cross Objections.

The facts of the case an be easily followed if we take on hand the commisssioner’s plan annexed to this Judgment for reference.

The plaintiff is the owner of R.S. Nos. 75/4 and 77/2 in the village of Uluppakudi. The defendants are the owners of R.S. No. 76/2. It will be seen that these two lands are separated only by a ridge. On the border between the plaintiff’s and defendants’ lands there are sixteen tamarind trees of varying age, the oldest of them being about 60 years old. There has been a recent change of hands in regard to the plaintiff’s land. On the plaintiff becoming the owner four years ago he found that nine of the sixteen trees are constituting an unmitigated nuisance so far as his property is concerned and by means of the Nizhal Vadai which they create patches of his land are becoming unfit lor cultivation. Therefore, he has come to Court with this suit for the overhanging branches of these offending nine trees being lopped off so that his cultivation might not be damaged. Both the Courts below found, following the decisions in Guruswami Raja v. Perumal Raja1. Vishnu Jagannath v. Vasudeo Raghunath2, Putrayya v. Krishna Gota3 and Rengasami v. Arumuga4, that the owner of a particular land has no right to allow his trees to overhang on the lands of his neighbour and that he cannot acquire any right by prescription and that if he allows his trees to overhang, the person aggrieved can cut off the branches of the trees, and decreed the suit. (See also Butler v. Standard Telephone and Cables5, Lemmon v. Webb6, Mills v. Brooker7, Smith v. Giddy8, Bhudeb Mooker Jea v. Kalachand9, Mahbali v. Mavu10 and Behari Lal v. Gosalal11.) In fact the plaintiff need not have even come to Court and he could have himself cut off these branches and abated the nuisance. So long as he could do this without entering upon the neighbours lands ; Putrayya. v. Krishna Gota3, No notice to do so is necessary: Lakshminarain v. Tara Prasanna12.

But the learned counsel Mr. R. Ramamurthy says that the plaintiff did so in order to avert any breach of the peace and obtain an authoritative mandatory injunction which was his legitimate due: Bhudeb Mooker Jea v. Kalachand1. Both the Courts below have found in favour of the plaintiff. The defeated defendants have preferred this second appeal.

In this second appeal I am of the same opinion as both the Courts below. I am not impressed by the fact that these trees have been in existence for a considerable number of years. An old nuisance does not become by passage of time a respectable nuisance. No prescriptive right can be acquired to have an overhanging tree which is ever growing and changing: Keshav v. Sankar2, Harikrishna v. Shankar3, Secretary of State v. Zemindar of Saptur4, So an old nuisance may become by its accumulated and increasing disadvantage so intolerable that it will have to be immediately abated. There can be no question of acquiescence also. It may be that the previous owner on account of his relationship with the defendants might not have taken objection. But that does not mean it estops or prevents the present owner from claiming the legitimate relief due to him: Hakimullah v. Samiulla5. That other people in the locality for individual reasons of their own may tolerate similar nuisance is equally no defence: Keshav v. Shankar2, I find no reason whatever to interfere with the decree and judgments of the Courts below.

There is a Memorandum of Cross-Objections in regard to the damages not awarded by both the Courts below, and the disallowance of costs by the trial Court. In regard to the former point there are no materials now, after two Courts have refused to give any relief following as they st