K.Narayan - (1.) THIS second appeal is directed against the judgment and order dated 20-9-1989 rendered by llnd Addi. District Judge, Varanasi In C. A. No. 54 of 1988, dismissing the first appeal of the defendants appellants. In nut-shell, it may be mentioned that the plaintiff respondent had brought a suit for removal of certain branches of tree over-hanging his house, which was decreed by the trial court on 29-2-1988 and first appeal was dismissed.
(2.) I have heard the learned counsel for the appellant and also gone with him through the judgments of the courts below. The arguments of the learned counsel for the appellant have been directed to show that the proceedings under section 133 CrPC were commenced before the suit in April, 1981 and were dismissed. It may be that in view of this situation, the cause of action for nuisance which was the basis of the suit of the plaintiff, had accrued before 1981 but it could not be said as to how that would at all affect the decision In the suit and the appeal. Another argument has been that there existed two trees and one of them has already been cut and therefore, the evidence of PW 1 recorded in the trial court could not be considered properly It was urged that it could not be said as to branches of which tree were over-hanging the property of the plaintiff This cannot be said to be the question of law. The tree which is over hanging the properly of the plaintiff alone has been directed to be removed and only to the extent of branches hanging over the property of the plaintiff. This by itself was more than sufficient description of the property covered by the relief. It was also urged on behalf of the appellant that there were several branches and sub-branches. Obviously it has to be there as the growth of trees cannot be limited by any order or wish of either party. Branches over hanging alone can be the description and neither number of the main branches nor of sub branches could be given.
(3.) THE other argument was that no commission was issued and, therefore, it could not be considered whether trees were at all nuisance or not. THE mere existence of a tree belonging to another the branches of which over hang the property of the plaintiff Is the nuisance. THE quantum thereof is not going to affect the decision of the suit in any form. It is old settled law rendered by maxim-cujus est solum ejus, est usque ad coelum"-that the owner of the soil is owner also of the whole column of space above the surface, was well involved in the suit as exceptions to this maxim are only those which are covered by different legislatures. THE owner of a building has a right to remove any projection into his land or over-hanging tree bough or cornice and this right of the owner has been recognised in several cases such as Kunj Behari v. Basdeo, 47 IC 950, Chhagan Lal v. Hemchand, 1932 Bom. 224, Dahyabai v. Hira Lal, 37 Bom. LR 939 and Smith v. Giddy (1904) 2 KB 448. In the last case it was observed that such over-hanging trees could be removed without proof of any damage.;