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Deo Dutt Pande and ors. Vs. Kauleshar Dube and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad
Decided On
Judge
Reported in28Ind.Cas.843
AppellantDeo Dutt Pande and ors.
RespondentKauleshar Dube and ors.
Cases Referred and Lakshmi Narain Banerjee v. Tara Prosanna Banerjee
Excerpt:
tree - branches overhanging neighbour's house, right to remove. - - 1 and 2. it was further alleged in the plaint that in case the plaintiffs failed to prove their title to the tree, the defendants should be made to cut down the branches overhanging the house of the plaintiffs as the tree was old and likely to fall down any moment and cause damage to them. the learned subordinate judge agreed with the first court that the plaintiffs had failed to prove their title to the tree as also its dangerous condition, but as the tree was an old one and some of its branches overhung the house of the plaintiffs, the latter were entitled to have those brandies cut down......contention of the plaintiffs-appellants is maintainable. it was not alleged by them that the nib tree overhangs or in any way affects their house. they cannot, therefore, ask for its removal. nor have they made out any case for the removal of the entire pipal tree. it has been found as a fact by both the courts, below that the tree in question is not in a dangerous state. the lower appellate court, as a matter of precaution because of the old age of the tree, has allowed the lopping off of the western branches of the tree which overhang the house of the plaintiffs, the finding is not that it is in a dangerous state, but that at some future time the branches which overhang the plaintiffs' house might fall down and injure it or its inmates. the learned subordinate judge need not have.....
Judgment:

Rafique, J.

1. The relevant facts of this appeal fire as follows: The plaintiffs-appellants are tenants and reside in the village of Karao in the district of Jaunpur. To the west of their house is an old pipal tree, some of the branches of which, over-hang their house. They instituted this suit in the Court of the Munsif of Jaunpur against the zemindars of the village for an injunction restraining the latter from preventing the plaintiffs from cutting down the piped tree and appropriating its timber. The plaintiffs alleged that the tree belonged to them and they wanted to cut down the branches overhanging their house, but were prevented by defendants Nos. 1 and 2. It was further alleged in the plaint that in case the plaintiffs failed to prove their title to the tree, the defendants should be made to cut down the branches overhanging the house of the plaintiffs as the tree was old and likely to fall down any moment and cause damage to them. The claim was resisted principally by defendant No. 2, who claimed the tree as his and denied that it was in a dangerous condition. The learned Munsif dismissed the claim, holding that the tree belonged to the zemindars. On appeal the learned Subordinate Judge remanded the case under Order XLI, Rule 25, Civil Procedure Code, for the trial of a fresh issue as to whether the piped tree was dangerous to the plaintiffs and, if so were they entitled to have it cut down. The first Court returned a finding against the plaintiffs to which objections were taken. The learned Subordinate Judge agreed with the first Court that the plaintiffs had failed to prove their title to the tree as also its dangerous condition, but as the tree was an old one and some of its branches overhung the house of the plaintiffs, the latter were entitled to have those brandies cut down. The decree of the first Court was accordingly modified. As to costs the order was that the parties were to bear their own costs in both Courts. The plaintiffs have preferred a second appeal to this Court. They say that the lower Appellate Court ought to have decided the question with regard to the nib tree also which has grown inside the pipal tree. They further urge that under the circumstances of the case the decree should have been for the removal of the entire tree or at least for KU much of it as overhangs the house of the plaintiffs. They dispute the order of the Court below as to costs and contend that costs should have been allowed to them. I do not think that the first contention of the plaintiffs-appellants is maintainable. It was not alleged by them that the nib tree overhangs or in any way affects their house. They cannot, therefore, ask for its removal. Nor have they made out any case for the removal of the entire pipal tree. It has been found as a fact by both the Courts, below that the tree in question is not in a dangerous state. The lower Appellate Court, as a matter of precaution because of the old age of the tree, has allowed the lopping off of the western branches of the tree which overhang the house of the plaintiffs, The finding is not that it is in a dangerous state, but that at some future time the branches which overhang the plaintiffs' house might fall down and injure it or its inmates. The learned Subordinate Judge need not have based his judgment on that ground at all, as under the law the plaintiffs have a right to the removal of the branches of the tree which overhang their house, vide Hari Krishna Joshi v. Shankar Vithal 19 B. 420 and Lakshmi Narain Banerjee v. Tara Prosanna Banerjee 31 C. 944 : 8 C.W.N. 710. According to the finding of the lower Appellate Court the northern branches of the tree, by which are presumably meant the north-western branches, as the report of the Amin shows, also overhang the house of the plaintiffs. The latter have, therefore, a right to ask for the cutting down of those branches also. The appeal, therefore, must prevail as regards those branches. As to the last contention for the plaintiffs relating to costs, I do not think there is any force in it. Substantial allegations of the plaintiffs and principal reliefs sought by them have been disallowed. I think that the order of the lower Appellate Court with regard to costs was a correct ordered, therefore, modify the decree of the Court below by directing the defendant No. 2 to cut down the north-western and western branches of the tree in question which overhang the plaintiffs' house. The rest of the appeal fails and is dismissed. I also make no order is to costs.


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