1. 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.
2. The facts of the case can be easily followed if we take on hand the Commissioner's plan annexed to this judgment for reference.
3. 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. 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 plaintiffs 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 Nizhalvadai (Text in Tamil omitted) which they create patches of his land are becoming unfit for 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 to be damaged. Both the courts below found, following the decisions in Gurusami Raja v. Perumal Raja : AIR1929Mad815 , Vishnu Jagannath v. Vasudeo Raghunath, : AIR1918Bom68 ; Putrayya v. Krishna Gota : AIR1935Mad31 , and Rangaswami v. Arumugha, 71 Mad LJ 296: AIR 1936 Mild 702 (D), 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 Butter v. Standard Telephone and Cables Ltd., (1940) KB 399 (E); Lemmon v. Webb, (1895) AC 1 (F); Mills v. Brooker, (1919) 1 KB 555 (G); Smith v. Giddy (1904) 2 KB 448 (II); Bhudeb v. Kalachand, : AIR1921Cal129 (I), Mahbali v. Maim, : AIR1924Pat416 (I); Behari Lal v. Ghisalal, 24 All 499 (J1).
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 : AIR1935Mad31 . No notice to do to is necessary Lakshmi Narain v. Tars Prosanna, ILR Cal 944 (K). 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, : AIR1921Cal129 (I). Both the Courts below have found in favour of the plaintiff. The defeated defendants have preferred this second appeal.
4. 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 over-hanging tree which is ever growing and changing: Keshav v. Shankar, : AIR1925Bom446 (L); Hati Krishna v. Shankar, ILR 19 Bom 420 (M); Secretary of State v. Zamindar of Saptur : AIR1938Mad180 , 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. Md. Samiullab, : AIR1935All750 . That other people in the. locality for individual reasons of their
own may tolerate similar nuisance Is equally no defence; : AIR1925Bom446 (L); I find no reason whatever to interfere with the decree and judgments of the Courts below.
5. 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. It regard to the former point there are no materials now. After two courts have refused to give any relief following as they stated, ILR (1895) 43 Bom 164 : : AIR1918Bom68 (B) (Supra), and the English Case of (1895) AC 1 (F), though certainly the Nizhalvadai must have made impossible the cultivation of at least portions of the lands it is unnecessary to pursue the matter because of want of adequate materials on record.
But this cannot however be said in regard to the costs disallowed by the trial court. To my mind the costs could have been disallowed only on the disallowed portion of damages. The trial Court must have given this plaintiff his costs on the other portion on which he has succeeded because costs must follow the event, Section 35 C. P. C. empowers that where the Court directs that any costs shall not follow the event the Court shall state its reasons in writing. There are no good grounds whatsoever why the plaintiff should be disallowed costs on the portion of the claim he has succeeded.
No doubt awarding of costs is in the discretion of the trial Court (S. 35, C. P. C.) but that should be exercised judiciously and on sound legal principles and not by chance nor by medley, nor by caprice nor in temper and this Court will interfere when it is found that it has been exorcised arbitrarily and capriciously as here. Kameshwar Singh v. Nebilal Mistri, : AIR1945Pat184 (P), Ralliaram Dingra v. Governor General of India in Council, ILR (1944) 2 Cal 487 : AIR 1946 Cal 249 (Q), Huxley v. West London Extension Rly. Co., (1886) 17 QBD 373 (R); Justin Hull v. Arthur Francis Paul, 24 Cal WN 352 : AIR 1920 Cal 1009 (S).
6. Therefore, the memorandum of cross-objections is allowed to the extent of allowing proportionate costs in regard to the portion the plaintiff has succeeded in the trial Court. Except to this extent the memorandum of cross-objections is dismissed.
7. The second appeal is dismissed with costs,
8. No leave.