HIGH COURT OF ALLAHABAD
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S.S. Dhavan, J. -
(1.)THIS is a Plaintiff's second appeal from the decree of the Second Additional Civil Judge, Meerut reversing that of the Second Additional Munsif, Meerut, and dismissing his suit for a mandatory injunction requiring the Defendant Respondent to remove branches of his tree which are over hanging the Appellant's plot of land. The Plaintiff Appellant alleged that his plot adjoined that of the Defendant Respondent Kurey; that the Defendant had a mango tree on the boundary of the two plots whose branches extended over a portion of the Appellant's plot with the result that this portion had become unclutivable. He prayed for an injunction ordering the Defendant to cut off and remove the over hanging branches. The Defendant resisted the suit. He admitted that branches of his mango tree were over hanging the Plaintiff's plot but claimed easementary rights on the ground that the tree was 66 years old. The trial court held that a portion of the Plaintiff's plot had been rendered uncultivable because of the over hanging branches of the Defendant's mango tree and that the Defendant had acquired no prescriptive right to keep the branches in that position.
It issued an injunction ordering the Defendant to cut and remove the branches. On appeal the learned Civil Judge confirmed the findings of the trial court that the over hanging branches had (sic)de a part of the Plaintiff's land unc(sic) but he dismissed the suit on the gro(sic) t these (sic) nches have been over ha(sic) ears and the Plaintiff had no(sic) ested. He was (sic) he opinion (sic) cause of his acqesccnce the(sic) as "estopped from challenge (sic) e at present as he did not (sic) objection before", and held that tut "Plaintiff's suit as thus in every case barred by estoppel..." The Plaintiff has come to this Court in second appeal.
(2.)THE view taken by the lower appellate court is manifestly erroneous. I regret to say that the learned Judge did not appreciate the principles governing the law of estoppel. Before estoppel can be invoked against a person, the party invoking it must prove that that person had so conducted him. sell as to induce in him a belief in the existence of some fact and he thereby changed his position. But the owner of a tree with branches over hanging the land of another cannot invoke the rule of estoppel merely on the ground that the other person did not take any action. He has to prove that this inaction made him change his position. Ordinarily the owner of a tree with branches overhanging another's land cannot claim that the omission, of the owner of the plot to protest against the, over hanging branches induced him to change his position because there is no position to change. The case is one of trespass, and the trespasser, in the absence of special circumstances cannot rely on estoppel or acquiescence which is a species of estoppel -against the owner of the plot.
The over hanging of branches of another man's tree is a continuing wrong, and the cause of action is renewed on each day of the wrong. No question of the Defendant having acquired an easementary right arises in this case. An easement is a right which the owner of a land possesses for the beneficial enjoyment of his land to do or continue to do something, or to prevent or continue -to prevent something being done, in or upon, or in respect of certain other land not his own. The continuance of over hanging branches is not ordinarily necessary for the beneficial enjoyment of the land on which the me stands.
(3.)THE view taken by the trial court is correct. I allow(sic) al, set aside (sic)ecree of(sic) wer appellate court, and(sic) the issue of a mandatory inju(sic) n requiring the Defendant to re(sic) over hanging branches with(sic) months of this order. If the (sic) s to company this order (sic) Appellant will be entitled to apply to the Court for the removal of the branches and also for the committal of the Defendant for disobedience of the Court's order. The order shall be communicated to the Defendant forthwith.
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