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Bhudeb Mookerjee and ors. Vs. Kalachand Mallik and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal129,66Ind.Cas.536
AppellantBhudeb Mookerjee and ors.
RespondentKalachand Mallik and anr.
Cases ReferredBaiju Lal Parbatia v. Pulnk Lal
Excerpt:
specific relief act (i of 1877), sections 3, 54, 55 - 'obligation,' meaning of--injunction to restrain culling of sacred tree--prevention of breach of merely moral or religious obligation. - .....branches belong to the owner of the soil over which they grow. a person has the right to cut the roots of trees belonging to an adjoining owner which grow into his land. the right to cut the roots or have the branches cut cannot be lost by prescription (non-user).' see also pothier, traite de contract de societe, second appendice, article 243. (oeuvres ed, bugnet, 1831, volume 4, page 332); huq, commentaire du code civil, volume 4, page 457; wang, german civil code, article 310; schuster, german civil law, page 388.3. on what principle, then, can the plaintiffs demand that a perpetual injunction should be granted to prevent the execution of the decree? under section 54 of the specific belief act a perpetual injunction may be granted to prevent the breach of an obligation existing in.....
Judgment:

1. This is an appeal by the plaintiffs in a suit for permanent injunction to restrain the execution of a decree obtained by the first defendant against the second defendant for the removal of a nim tree. The tree stands on the boundary wall of the land of the second defendant, and its roots have penetrated into the adjoining wall of the house of the first defendant. The consequence has been that the wall has been cracked and the house has been injured. In these circumstances, the first defendant instituted a suit against the second defendant for a mandatory injunction for the removal of the tree and for damages. On the 20th May 1917 that suit was decreed, and the first defendant became entitled to remove the tree unless the second defendant removed it within fifteen days. That decree was affirmed on appeal on the 22nd January 1919. Thereupon, the plaintiffs instituted the present suit on the allegation that the tree was a sacred tree, that it had been duly consecrated, that it was worshipped by the orthodox Hindu people of the locality, and that its removal would be an invasion of their religion and would offend their religious sentiments. The Court of first instance decreed the suit, granted a permanent injunction and authorised the first defendant to take out within a month bricks from the wall on which the tree stands, thereby causing an open space between tine tree and his wall, and place there an iron-plate between the tree and the walls to prevent penetration of roots into his wall in the future. Upon appeal, the Subordinate Judge has reversed this derision and dismissed the suit. In support of the present appeal, the plaintiffs have contended that a permanent in junction should be granted to prevent removal of the sacred tree in execution of the decree.

2. There is no room for controversy that the decree was made by a Court of competent jurisdiction and was based on well established legal principles. The decision in Lakshmi Narain v. Tara Prosanna 31 C. 944 : 8 C. W. N. 710. affirms the proposition that as every owner of land is under an obligation not to allow the branches of his tree to grow so as to overhang, or the roots of his tree to extend so as to penetrate, his neighbours land to the detriment of the latter, in case of breach of such an obligation it is open to the court to grant a mandatory injunction for the removal of the nuisance, under Section 55 of the Specific Belief Act, In support of this view, reference was made to the decision of the House of Lords in Lemmon v. Webb (1895) App. Cas. 1 : 64 L. J. Ch. 205 : 11 R. 116 : 71 L. T.647 : 59 J. P. 564. which affirmed that of the court of Appeal in Lemmon v. Webb (1894) 3 Ch. 1 : 63 L. J. Ch. 570. The view taken there had been propounded three centuries earlier in Norris v. Baker (1613) 1 Roll. Rep. 393 : 81 E. R. 559. (See also Viner's Abridgment, Volume XX, page 417). The same view has been affirmed directly or by implication in subsequent cases; amongst these may be mentioned Smith v. Giddy (1904) 2 K. R. 448: 73 L. J. K. B. 894 : 91. L. T. 296 : 53 W. R. 207: 20 T. L. R. 596 Cheater v. Cater (1918) 1 K. B. 247 : 82 L. J. K. B. 449. Mills v. Brooker (1919) 1 K. B. 555 : 83 L. J. K. B. 950 : 121 L. T. 254 : 17 L. G, R. 238 : 63. S. J. 431 : 35 T. L. R. 261. This is by no means a singular rule of law and in this connection reference may be made to the Code Napoleon tr. Barrett: Article 672 provided as follows:

He whose property the branches of a neighbour's trees overhang, may force the latter to cut such branches. If the roots extend into his heritage, he has the right of cutting them himself.' Article 673 was in these terms: 'Trees growing in a party hedge are party like the hedge; and cash of the two owners has the right of requiring that they be cut down.' Article 673 of the French civil Code (tr. Wright) contains the following provision: 'A person over whose property the branches of a neighbour's trees grow can compel such neighbour to cut them, Fruit that falls naturally from such branches belong to the owner of the soil over which they grow. A person has the right to cut the roots of trees belonging to an adjoining owner which grow into his land. The right to cut the roots or have the branches cut cannot be lost by prescription (non-user).' See also Pothier, Traite de contract de Societe, second Appendice, Article 243. (Oeuvres Ed, Bugnet, 1831, Volume 4, page 332); Huq, Commentaire du Code Civil, Volume 4, page 457; Wang, German civil Code, Article 310; Schuster, German Civil law, page 388.

3. On what principle, then, can the plaintiffs demand that a perpetual injunction should be granted to prevent the execution of the decree? Under Section 54 of the Specific Belief Act a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication. The plaintiffs must, consequently, specify the obligation which exists in their favour and would be infringed by the execution of the decree held by the first defendant against the second defendant. The plaintiffs can succeed only if they can establish, first, that the first defendant is under an obligation to keep on her land a tree considered sacred by the plaintiffs, even though the tree does damage to the property of the adjoining owner; and, secondly, that the second defendant is under an obligation to acquiesce in the continued existence of such a tree on the land of the adjoining proprietor even though such tree does damage to his own property. There mast be obligations recognised by law. Section 3 of the Specific Belief Act states that the term obligation includes every duty enforceable by law. We need not attempt an exposition of the full significance of the term obligation. But obligation may be taken to be a tie or bond which constrains a person to do or suffer something; it implies a right in another person to which it is correlated, and it restricts the freedom of the obliges with referenda to definite acts and forbearances; bat in order that it may be enforced by a court, it mast be a legal obligation and not merely moral, social or religions. Neither authority nor principle has been invoked in support of the alleged legal obligation which the plaintiffs seek to impose upon the defendants on the ground that the tree has been consecrated and is held sacred by the plaintiffs as pious Hindus. We are not unmindful that certain trees are regarded with great veneration; Dino Nath Chuckerbutty v. Pratap Chandra 27 C. 30 : 4 C. W. N. 79 : 14 Ind. Deo. (N. s.), 21. Baiju Lal Parbatia v. Pulnk Lal 24 C. 385 at P. 387 : 12 Ind. Dec. (n. s.) 944., Thus the Asvatha trs(sic)', the Talsi plant and the Bilva tree are objects of worship. The first is sassed to Aditya, the second to Vishnu and the third to Shiva. The Kadamba tree in the Meenakshi temple at Madura and the Jamba tree in the temple of Jambukeswara near Trichinopoly are regarded with great sanctity. It may also be conceded that according to the Hindu Shastras, special religious merit accrues from the planting of trees on the road side, on the banks of tanks and in gardens or groves ; and the Sastras also inculcate the fear of various punishments (by visitation of various sins) on those who fell trees; indeed, special ritual is prescribed for the planting of trees for the benefit of the public (see Prannath Saraswati, Hindu Law of Endowments, Tagore Law Lectures, 1892, Chapter IX, pages 230 246; see page 214, where, the rules ordained by Manu and Vishnu for the inflation of punishment upon persons who destroy trees are quoted from Manu 1(sic) 48, VIII, 285, XI-143, 145, Vishnu V 55-59). But the view cannot be maintained that the rules be prescribed in the ancient tests are authorities in favour of the recognition of a legal obligation of the requisite character. We hold, accordingly, that the refusal to grant a perpetual injunction will not lead to the breach of an obligation, that is, of a duty enforceable by law which the plaintiffs can compel the defendants to perform. No foundation has thus been laid by the plaintiffs for the grant of a perpetual injunction.

4. The result is that the decree of the Subordinate Judge must be affirmed and this appeal dismissed with costs.


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