Although Hari Krishna Joshi v. Shankar Vithal was referred to on the question whether the plaintiff had a right to cut off those portions of the trees which overhung his land, the learned Judges avoided deciding whether there can be such a customary easement within the meaning of Section 18 of the Indian Easements Act aa was claimed by the defendants in the case before them, But it seems to us that the decision in Hari Krishna Joshi v. Shankar Vithal is sufficient authority for deciding that there can be no such easement, as is claimed in this case within the meaning of that term in the Indian Ease-meats Act, and if there can be no such easement, then such a right cannot be proved to exist by local custom under Section 18 of the Indian Easements Act. We think the lower appellate Judge was right in saying that the custom set up was too. vague and indefinite, It was neither ancient nor invariable. Besides if a few persons chose to tolerate their neighbour's palms overhanging their houses, such act could not establish a custom binding on all the others.
1. The plaintiff sued to obtain a permanent injunction ordering the defendants to see that the two palm trees and the jack-fruit tree growing in the defendants' land, or their leaves or any portion of them did not overhang either the plaintiff's house or land, and to obtain an order that these trees should he cut down by the defendants at their expense and that in default the plaintiff should be allowed to do so at the expense of the defendants, also for damages and costs.
2. The defendants raised many contentions in their written statement. The principal issues raised on the pleadings were:-
(1) Is the plaintiff entitled to have the defendants' palms and jacktree (Nos. 1 to 3 in the map-exhibit 18) removed ?
(3) Is the plaintiff estopped from asking for the removal of the palms and jaoktree ?
(4) Is the suit barred by limitation.
(5) Have the defendants any and what rights of easement with regard to the palms?
3. The trial Judge held that the plaintiff was entitled to have such portions of defendants' palm and jack-fruit-tree cut as overhung his property; that the plaintiff was not estopped from asking for the removal of the palms, and that as to the jack-fruit tree the question of estoppel did not arise; that the suit was not barred by limitation; and that the defendants had no rights of easement whatever. Accordingly he directed the defendants to remove and cut off those portions of the two palms and one jack-fruit tree which overhung plaintiff's land, failing which plaintiff was at liberty to cut them down at defendant's costs through Court. He awarded no damages to plaintiff but allowed proportionate costs against defendants. In appeal the principal issues were:-
(3) Whether issue 5 trained in the lower Court, is not comprehensive and does not include the right of customary easement claimed by the defendants?
(4) Whether the easements claimed by the defendants are proved?
(5) Whether plaintiff is entitled to have the two palms and one jack tree out so far as they overhung plaintiff's site and house?
4. The Judge held on issue No 3 that issue No. 5 in the trial Court was sufficiently comprehensive so as to include the customary easement set up by defendants. On issue No 4 the Judge held that the easements claimed by the defendants were not proved, and on issue No. 5, that the plaintiff was entitled to have the two palms and one jack-fruit tree cut so far as they overhung plaintiff's site and house.
5. It has been argued in appeal before us that the defendant was entitled to an easement by local custom by which his neighbour was bound to suffer his land to be overhung by the defendant's trees.
6. In Hari Krishna Jonhi v. Shankar Vithal (1894) I.L.R. 19 Bom. 420 this Court decided that the private nuisance caused by the overhanging boughs belonging to the trees of one neighbour to the owner of the land over which the boughs were overhanging did not create a "right" within the definition of 'easement' in the Indian Easements Act, nor did the convenience to the owner of the tree, always changing in extent and position of space, become at any time so determinate that it could by any length of time be held to be enjoyed as "of right", a matter essential under Section 15 of that Act. In the judgment of Mr. Justice Jardine the whole law on the subject was carefully considered. The question whether such an easement was recognised by the rules of Hindu Jurisprudence was discussed, and the principles applied in such cases by the Courts in England explained. There is no reason why we should differ from the conclusion arrived at in that judgment, that there can be no such easement as is claimed in this case which can be acquired by prescription.
7. It Is contended, however, that although such an easement cannot be acquired by prescription, it can be acquired by local custom. The same question arose in Vishnu v. Vasudev where the
plaintiff claimed the same relief as the plaintiff in this suit. Before the appeal Court it was argued that the defendants should have been allowed to prove the alleged custom as to his right to retain the trees overhanging the plaintiff's land. Shah J. said (p. 828):-
As to the first point I have no hesitation in disallowing the appellant's contention. It is clear on the authorities, and for the purpose of this point it is not disputed before as, that the plaintiff ban the right to cut off those portions of the trees which overhang his land. This right is recognised in Lemmon v. Webb [1895] A.C. 1; Hari Krishna Joshi v. tihaukar Vithal (1894) I.L.R. 19 Bom. 420 and Lakahmi Narain Banerjee v. Tarn Prosanna Banerjee (1904) I.L.R. 31 Cal. 944....As regards the alleged custom, the defendant described the custom in the written statement in these terms : ' No owner of plantation can make a complaint against another owner even if these trees grow in any direction in the air. There is a Vahivac (custom) to this effect in oar province continuing over thousands of years.' When the issues wore framed, there was no specific issue raised as to this custom. After the hearing of the suit commenced, an application was made on November 29,' 1915, in which the defendant requested the Court to raise the issue as to custom in these terms: ' Does defendant prove that there is a custom in the village not to complain against overhanging of cocoanut trees over every neighbour's lands" 'the trial Court disallowed the application of the defendant for this issue and the evidence relating to it. "It is urged before us that the trial Court should have allowed the defendant an opportunity of proving this custom. Having regard to the terms of the issue it seems to me that the trial Court was right in disallowing the defendant's application. As stated in the written statement and as indicated in the proposed issue there is a custom in the village not to complain against the overhanging of cocoanut trees over neighbour's lands. It seems to me that such a custom would not be reasonable and cannot be pleaded. In effect it amounts to a plea that a person whose right to land is infringed cannot sue in respect of that infringement. Apart from the form in which the alleged custom is stated by the defendant it seems to no that in substance it is indefinite and vague; and, in my opinion, it will serve no useful purpose to direct at this stage an inquiry as to custom, which, as stated by the defendant, does not appear to be either reasonable or definite. In this view of the case it is not necessary to consider Mr. Gokhale's argument on behalf of the respondent that there could be no customary easement in respect of the right to overhang the trees on a neighbour's land as such a right is not an easement within the meaning of the definition of 'easement' under the Indian Easements Act. I express no opinion on the general question as to whether the right to retain the trees overhanging the neighbour's land is a customary easement within the meaning of Section 18 of the Indian Easements Act.
8. Although Hari Krishna Joshi v. Shankar Vithal was referred to on the question whether the plaintiff had a right to cut off those portions of the trees which overhung his land, the learned Judges avoided deciding whether there can be such a customary easement within the meaning of Section 18 of the Indian Easements Act aa was claimed by the defendants in the case before them, But it seems to us that the decision in Hari Krishna Joshi v. Shankar Vithal is sufficient authority for deciding that there can be no such easement, as is claimed in this case within the meaning of that term in the Indian Ease-meats Act, and if there can be no such easement, then such a right cannot be proved to exist by local custom under Section 18 of the Indian Easements Act. We think the lower appellate Judge was right in saying that the custom set up was too. vague and indefinite, It was neither ancient nor invariable. Besides if a few persons chose to tolerate their neighbour's palms overhanging their houses, such act could not establish a custom binding on all the others.
9. The result must be that the appeal is dismissed and the decree passed by lower appellate Court confirmed.
10. The appellant objected to the terms of the decree, but it is difficult to see how the plaintiff's right could be protected by any other order. The plaintiff is entitled to cut off' such portion of his neighbour's trees as overhang his land, and the decree allows the defendant to cut off those portions of the two palms and one jack-fruit tree which overhang the plaintiff's land before the plaintiff exercises his own rights in the matter.
11. Respondent No. 1 will get his costs of the appeal.
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Bombay High Court
Keshav Krishna Kulkarni vs Shankar Mahadev Kulkarni on 19 February, 1925
Equivalent citations: (1925) 27 BOMLR 663
Bench: N Macleod, Kt., Coyajee
1. The plaintiff sued to obtain a permanent injunction ordering the defendants to see that the two palm trees and the jack-fruit tree growing in the defendants' land, or their leaves or any portion of them did not overhang either the plaintiff's house or land, and to obtain an order that these trees should he cut down by the defendants at their expense and that in default the plaintiff should be allowed to do so at the expense of the defendants, also for damages and costs.
2. The defendants raised many contentions in their written statement. The principal issues raised on the pleadings were:-
(1) Is the plaintiff entitled to have the defendants' palms and jacktree (Nos. 1 to 3 in the map-exhibit 18) removed ?
(3) Is the plaintiff estopped from asking for the removal of the palms and jaoktree ?
(4) Is the suit barred by limitation.
(5) Have the defendants any and what rights of easement with regard to the palms?
3. The trial Judge held that the plaintiff was entitled to have such portions of defendants' palm and jack-fruit-tree cut as overhung his property; that the plaintiff was not estopped from asking for the removal of the palms, and that as to the jack-fruit tree the question of estoppel did not arise; that the suit was not barred by limitation; and that the defendants had no rights of easement whatever. Accordingly he directed the defendants to remove and cut off those portions of the two palms and one jack-fruit tree which overhung plaintiff's land, failing which plaintiff was at liberty to cut them down at defendant's costs through Court. He awarded no damages to plaintiff but allowed proportionate costs against defendants. In appeal the principal issues were:-
(3) Whether issue 5 trained in the lower Court, is not comprehensive and does not include the right of customary easement claimed by the defendants?
(4) Whether the easements claimed by the defendants are proved?
(5) Whether plaintiff is entitled to have the two palms and one jack tree out so far as they overhung plaintiff's site and house?
4. The Judge held on issue No 3 that issue No. 5 in the trial Court was sufficiently comprehensive so as to include the customary easement set up by defendants. On issue No 4 the Judge held that the easements claimed by the defendants were not proved, and on issue No. 5, that the plaintiff was entitled to have the two palms and one jack-fruit tree cut so far as they overhung plaintiff's site and house.
5. It has been argued in appeal before us that the defendant was entitled to an easement by local custom by which his neighbour was bound to suffer his land to be overhung by the defendant's trees.
6. In Hari Krishna Jonhi v. Shankar Vithal (1894) I.L.R. 19 Bom. 420 this Court decided that the private nuisance caused by the overhanging boughs belonging to the trees of one neighbour to the owner of the land over which the boughs were overhanging did not create a "right" within the definition of 'easement' in the Indian Easements Act, nor did the convenience to the owner of the tree, always changing in extent and position of space, become at any time so determinate that it could by any length of time be held to be enjoyed as "of right", a matter essential under Section 15 of that Act. In the judgment of Mr. Justice Jardine the whole law on the subject was carefully considered. The question whether such an easement was recognised by the rules of Hindu Jurisprudence was discussed, and the principles applied in such cases by the Courts in England explained. There is no reason why we should differ from the conclusion arrived at in that judgment, that there can be no such easement as is claimed in this case which can be acquired by prescription.
7. It Is contended, however, that although such an easement cannot be acquired by prescription, it can be acquired by local custom. The same question arose in Vishnu v. Vasudev where the
plaintiff claimed the same relief as the plaintiff in this suit. Before the appeal Court it was argued that the defendants should have been allowed to prove the alleged custom as to his right to retain the trees overhanging the plaintiff's land. Shah J. said (p. 828):-
As to the first point I have no hesitation in disallowing the appellant's contention. It is clear on the authorities, and for the purpose of this point it is not disputed before as, that the plaintiff ban the right to cut off those portions of the trees which overhang his land. This right is recognised in Lemmon v. Webb [1895] A.C. 1; Hari Krishna Joshi v. tihaukar Vithal (1894) I.L.R. 19 Bom. 420 and Lakahmi Narain Banerjee v. Tarn Prosanna Banerjee (1904) I.L.R. 31 Cal. 944....As regards the alleged custom, the defendant described the custom in the written statement in these terms : ' No owner of plantation can make a complaint against another owner even if these trees grow in any direction in the air. There is a Vahivac (custom) to this effect in oar province continuing over thousands of years.' When the issues wore framed, there was no specific issue raised as to this custom. After the hearing of the suit commenced, an application was made on November 29,' 1915, in which the defendant requested the Court to raise the issue as to custom in these terms: ' Does defendant prove that there is a custom in the village not to complain against overhanging of cocoanut trees over every neighbour's lands" 'the trial Court disallowed the application of the defendant for this issue and the evidence relating to it. "It is urged before us that the trial Court should have allowed the defendant an opportunity of proving this custom. Having regard to the terms of the issue it seems to me that the trial Court was right in disallowing the defendant's application. As stated in the written statement and as indicated in the proposed issue there is a custom in the village not to complain against the overhanging of cocoanut trees over neighbour's lands. It seems to me that such a custom would not be reasonable and cannot be pleaded. In effect it amounts to a plea that a person whose right to land is infringed cannot sue in respect of that infringement. Apart from the form in which the alleged custom is stated by the defendant it seems to no that in substance it is indefinite and vague; and, in my opinion, it will serve no useful purpose to direct at this stage an inquiry as to custom, which, as stated by the defendant, does not appear to be either reasonable or definite. In this view of the case it is not necessary to consider Mr. Gokhale's argument on behalf of the respondent that there could be no customary easement in respect of the right to overhang the trees on a neighbour's land as such a right is not an easement within the meaning of the definition of 'easement' under the Indian Easements Act. I express no opinion on the general question as to whether the right to retain the trees overhanging the neighbour's land is a customary easement within the meaning of Section 18 of the Indian Easements Act.
8. Although Hari Krishna Joshi v. Shankar Vithal was referred to on the question whether the plaintiff had a right to cut off those portions of the trees which overhung his land, the learned Judges avoided deciding whether there can be such a customary easement within the meaning of Section 18 of the Indian Easements Act aa was claimed by the defendants in the case before them, But it seems to us that the decision in Hari Krishna Joshi v. Shankar Vithal is sufficient authority for deciding that there can be no such easement, as is claimed in this case within the meaning of that term in the Indian Ease-meats Act, and if there can be no such easement, then such a right cannot be proved to exist by local custom under Section 18 of the Indian Easements Act. We think the lower appellate Judge was right in saying that the custom set up was too. vague and indefinite, It was neither ancient nor invariable. Besides if a few persons chose to tolerate their neighbour's palms overhanging their houses, such act could not establish a custom binding on all the others.
9. The result must be that the appeal is dismissed and the decree passed by lower appellate Court confirmed.
10. The appellant objected to the terms of the decree, but it is difficult to see how the plaintiff's right could be protected by any other order. The plaintiff is entitled to cut off' such portion of his neighbour's trees as overhang his land, and the decree allows the defendant to cut off those portions of the two palms and one jack-fruit tree which overhang the plaintiff's land before the plaintiff exercises his own rights in the matter.
11. Respondent No. 1 will get his costs of the appeal.
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