Venkataramana Rao, J.
1. The question in these second appeals relates to the dispute between two adjacent owners of plots in regard to the right to cut the branches of an overhanging tree. It is settled law that an owner of land can cut the branches of trees which overhang on his land. But it is contended that it would make a difference if the plots were held in common ownership, and one of the plots with the trees thereon with its branches overhanging on another is sold. The main facts in this case are not in dispute. The appellants are the owners of survey No. 333. To the south of this plot is survey No. 338/2 which belongs to the respondent. Both these plots belonged to one common owner, one Roya Goundan the father of one Arunachala and the first appellant. The second appellant is the son of the first appellant. Arunachala had a son Palani. In a partition among the members of the family survey No. 333 and the western half of 338-2 were allotted among others to the appellant's branch while the eastern portion of Survey No. 338 was allotted among other properties to Arunachala's branch. After the partition the eastern half of survey No. 338 was demarcated as survey No. 338-1 and the western half as Survey No. 338-2. Two tamarind trees stood in survey No. 338 and one of them which has been the subject matter of dispute is in survey No. 338-2. There is a fence which separates survey No. 333 from No. 338. By a sale-deed dated 21st January, 1925, Palani, son of Arunachala sold the eastern half of the land of survey No. 338-2 with the trees to the respondent. By another sale-deed dated 31st March, 1927 the appellants conveyed the western half with the tamarind tree thereon to the respondent. The relevant portion in the conveyance is as follows:
Yor shall hold and enjoy the undermentioned properties hereditarily from son to grandson and so on in succession with right of alienation by way of gift and sale. All wood and fruit trees, treasure and hidden treasure that are in the undermentioned plots belong to you
2. In the schedule there is the following recital:
These lands and half of the well belonging to us in plot No. 338-2 excluding the half belonging to you together with the picottah, and the materials connected therewith and tamarind trees, cocoanut trees aid other trees situated on the said plot.
3. The physical features of the plot where the tree stands is thus described by the learned District Munsif in paragraphs 2 and 3 of his judgment:
It will be seen from the commissioner's plan Exhibit C-1 as explained by his report exhibit C that this tamarind tree situated about nine feet away from the near side of the fence between the plaintiff's and the defendant's lands and 15 feet away on the far side has got branches overhanging the defendants' land with a spread of about 16 feet on the defendants' side of the fence and casts its shadow as shown by the semi-circular plotting in Exhibit C-1. The crop area of the overhanging branches on the defendants' land is said to be about a tenth of the whole crop area.
A stretch of land 8 feet abroad immediately north of the fence under the shade of the tamarind tree is left uncultivated and next north of it runs a water-way east-west and the defendants have plantain trees in the rest of the tamarind shade. East of the semi-circular portion, the defendants are trying to make chillies and brinjals which would have the shadow of the tamarind branches for some portions in the day. The ahove facts and the physical features are admitted.
4. The appellants have filed the suit O.S. No. 207 of 1930 for a mandatory injunction directing the defendant to remove the overhanging branches of the tamarind tree or on his default at plaintiff's costs. The respondent has filed O.S. No. 128 of 1930 praying for a declaration that he is entitled to a right of easement over survey No. 333 for the proper use and enjoyment of the plaint tamarind tree in survey No. 338 and its branches and for an injunction restraining the appellants in S.A. No. 159 of 1932 (plaintiffs in O.S. No. 207 of 1930) from interfering with the right of easement and for damages for the removal of obstruction from enjoyment of the produce of the tree from the branches which overhang on the appellant's land. To have the branches of a tree overhang on the land of another is not in the nature of a right of easement and it cannot be acquired by prescription at Common law or statute either under English Law or under Indian Law. Vide Hari Krishna Joshi v. Shankar Vittal I.L.R. (1894) 19 Bom. 420 following Lemmon v. Webb (1894) 3 Ch. 1 and (1895) A.C. 1. The reason of the rule is thus stated by Lord Herschell in Lemmon v. Webb (1895) A.C. 1
Then my lords as regards the question whether the plaintiff has acquired any right by reason of the length of time these trees have overhung his neighbour's soil. I think it is impossible to say that he has either acquired a right to the land over which they hang or to their overhanging, under the Statute of Limitations. The trees, of course grow from time to time and their growth each year is different from what it was the year before. The same remark applies to the suggestion that a prescriptive right has been obtained. The tree of to-day is not in the condition in which it was twenty years ago. It would be idle to suggest that the. right gained at any time was the right to have the tree there in the condition in which it was twenty years before, and that it was only open to the adjoining owner to put back the tree into the condition in which it then was.
5. It was on this principle it was held that such a right cannot be acquired by custom. As observed by Pandalai, J., in Gurusami Raja v. Perumal Raja (1929) M.W.N. 726:
Then as to the custom, there was really no custom in the proper sense that could be pleaded or was pleaded. A custom has to be definite to begin with. How can there be any custom for the shadow of overhanging trees to fall upon a neighbour's land? The thing is so indefinite and so vague and changes from day to day and year to year that there can be no such general custom either in a particular locality or throughout the country.
6. But it is contended that by virtue of the transfer of the tree by the sale-deed executed by the appellants in favour of the respondent all rights incidental to the enjoyment thereto must be deemed to have been conveyed and if the appellants are permitted to cause the obstruction to the enjoyment of the tree and the produce thereof by the respondent the appellants would be virtually derogating from their grant. The question is what is the right that has been conveyed under the sale-deed. As already stated there is no right of easement or customary right to have the branches of a tree overhang on another man's land. Therefore there cannot be said to be an implied grant of an easement necessary for the enjoyment of the property conveyed. To allow the branches of one's tree to overhang on another man's land is to commit a nuisance. It is thus stated by Lord Justice Kay, in Lemmon v. Webb (1894) 3 Ch. 1
The encroachment of the boughs and roots over and within the land of the adjoining owner is not a trespass or occupation of that land which by lapse of time could become a right. It is a nuisance.
7. The question therefore is whether the right to commit this nuisance has been granted. No doubt by apt words it may have been. In dealing with a right of prospect Lord Justice Blackburn in Dalton v. Augus (1881) 6 A.C. 740 , observed as follows:
I think this decision, By Lord Hardwick in Attorney General v. Doughty (1752) 2 Ves. Sen. 453 : 28 E.R. 290, that a right of prospect is not acquired by prescription, shows that, whilst on the balance of convenience and inconvenience, it was held expedient that the right to light, which could only impose a burden upon land very near the house, should be protected when it has been long enjoyed, on the same ground it was held expedient that the right of prospect, which would impose a burden on a very large and indefinite area should not be allowed to be created, except by actual agreement. And this seems to be the real ground on which Webb v. Bird (1861) 10 C.B. 268 : 142 E.R. 455 and Chasemore v. Richards (1859) 7 H.L.C. 349 : I.L.R. 140 are to be supported. The rights there claimed were analogous to prospect in this, that they were vague and undefined, and very extensive.
8. I would apply the same principle to this case. The right that is claimed in this case is to allow the branches of the tree to overhang over an unlimited and indefinite area of the appellants' land. The result is that the appellants would be subject to a burden which would virtually deprive them of the right to use their land as owners. It would prevent them from building on their land or cultivating it in the best manner they could or otherwise use it in the legitimate exercise of their right as owners. Such a thing could hardly have been the common intention of the parties giving rise to a right by necessary' implication. I am therefore of opinion that there is no grant of the right to commit a nuisance and the plaintiffs are entitled to the relief they claim.
9. Two cases were strongly relied on by Mr. T.M. Krishnaswami Aiyar; one is Someshwar Jethalal v. Chunilal Nageshwar I.L.R. (1919) 44 Bom. 605 which was also referred to by the learned District Judge. The facts of that case were peculiar. It was distinguished by Pandalai, J., in Gurusami Raja v. Perumal Raja (1929) M.W.N. 726 thus:.it was at least in part a case of another man's tree growing on one's own land...and where that is so, the owner of the land would not be entitled to cut off the branches and the roots of the defendant's tree simply because, if that were allowed, there would be an end of the defendant's tree.
10. But that is not this case. No question of proprietary right can be based on the mere fact of the branches overhanging on another man's land.
11. The other case relied on is Simpson v. Weber (1925) 133 L.T. 46. It was a case of an implied easement and the decision of the Court was expressly rested on that ground. From the facts of the case it will be seen that the right claimed was the right of support to a creeper which by its nature would attach itself to a wall and adhered to the plaintiff's property; and it was also found therein that it did not overhang on the plaintiff's property. The following observations of Salter, J., at page 47 in Simpson Weber (1925) 133 L.T. 46 are clear on the point:
The land of the grantor was in enjoyment of an obvious easement over the land granted namely the easement of right of support for this creeper and this gate.... Upon the whole, I have come to the conclusion, in the case of an easement so obvious as this, that there was no evidence that it was not the intention of the parties that the creeper and the gatepost should stay. The basis of easements is always the same - namely the common intention of the parties....
12. As has already been stated there is no right of easement in this case. The moment the land was sold and the respondent became the owner he would be committing a nuisance by allowing the branches of the tree to overhang on the land of the appellants. So long as the branches are allowed to overhang, the respondent will be the owner of the branches and the produce thereon and it may be that the adjoining owner will have to permit him to take the produce as the defendant would have no right thereto. Beyond that he could not insist on anything more. If the respondent intended to have the right he claims he should have provided for it in the sale-deed. I have already shown that having regard to the nature of the claim, it could not have been the common intention of the parties to reserve any such right. I would therefore allow the appeals, reverse the decree of the District Judge and restore that of the District Munsif with costs - one set in S.A. No. 159 of 1932.
13. Leave granted.