Vishwanatha Sastri, J.
1. The plaintiff is the appellant in this second appeal. He sued for an injunction restraining the defendant from interfering with his right to go on the defendant's land and having access to ten tamarind and four iluppai trees belonging to the plaintiff for the purpose of collecting the produce of those trees. The Courts below have dismissed the suit. Hence, this second appeal.
2. One Venkatapathi Naidu owned a tope adjoining which there was a bit of poromboke land. On this poromboke land he planted the trees now claimed by the plaintiff. The Government asserted its right to the poromboke land and granted a tree patta in favour of Venkatapathi Naidu in respect of the trees planted by him on the poromboke. Venkatapathi Naidu was enjoying the produce of the trees in accordance with the terms of the tree patta granted to him. After his death his son Narayanaswami Naidu succeeded to his properties and sold the tope to one Poraiswami Chetti in 1940 and this person again sold the tope to the defendant in 1942. The plaintiff claims to be the purchaser in 1943 of the right of Narayanaswami Naidu in the ten tamarind and four iluppai trees standing on poromboke land in respect of which tree patta had been granted to his father. These trees overhang the plot of land that had been conveyed to the defendant's predecessor-in-title in the year 1940. The plaintiff now claims that he has a right to go on the defendant's land in order to gather the produce of such of the trees or such portions of the trees as overhang the defendant's land. Mr. V. V. Raghavan, the learned advocate for the appellant, relies upon the decision of this Court in Arumugha Goundan v. Rangaswmi Goundan, : AIR1938Mad511 . In that case there was a family partition at which a very old tamarind tree belonging to the family was divided amongst the sharers while the site on which the tree stood wag allotted to one of them. It was held by the learned Judges that the common intention of the parties to the partition was that the right to project the branches of the tamarind tree over the land of another sharer should be granted and that the maxim that the grantor shall not derogate from his grant, was applicable to the case. On this principle they held that it was not open to the co-sharer who got for his share the land adjacent to the tree to cut off its branches which projected over his land. The Court further held that in order to enjoy the produce of the trees growing on the titan ones projecting on the land of one of the sharers the other sharers had a right to go on the land and take the produce. But in the present case the facts are wholly different. When Narayanaswami Naidu, the owner of the tope, sold it in 1940 to Doraiswami Chetti, there was no obligation laid on the vendee to allow the trees to overhang the land purchased by him. He could well exercise the right of an owner of land to abate a nuisance by cutting off the portions of the trees of an adjoining owner which project over his land. This right, however, he has not exercised. From this, it does not follow that the plaintiff is not the usufructuary of the trees overhanging the defendant's land. But he is not entitled to go on the defendant's land in order to gather the fruits that fall there from such portion of the trees as project over the defendant's land. The right claimed by the plaintiff is not an easement within the meaning of the Easements Act, and the plea of an express agreement or contract between the parties to allow a right of entry having been negatived, the plaintiff's suit must necessarily fail. The claim is one unknown to law and was rightly rejected by the Courts below.
3. The result is that this second appeal is dismissed with costs.
4. No leave.