JUDGMENT
S. Anwar Ahmad, J.
1. This appeal by the defendants first party arises out of a suit brought by the plaintiff-respondent No. 1 for removal of the trees planted on survey plot No. 377 of Khata No. 466 and survey plot No. 840 of Khata No. 363, in village Bajitpur, fully described in schedules 3 and 4 of the plaint, and for damages caused to him on account of those trees.
2. The case of respondent No. 1 was that he is the owner of culturable plots covered by survey plots Nos. 839 and 841 (schedule 1 of the plaint) and survey plots Nos. 374 and 375 (schedule 2 of the plaint). All these four plots are adjacent to the lands covered by survey plots Nos. 377 and 840 which belong to the appellants. The four plots belonging to respondent No. 1 plot Nos. 374, 375, 839 and 841 are culturable lands and produce chillies, rahar, maize and other crops. Survey plot No. 840 belonging to the appellants lies between plots Nos. 839 and 841, both of which belong to respondent No. 1; whereas survey plot No. 377 of the appellants is contiguous north of survey plots Nos. 374 and 375 belong to respondent No. 1. In the month of September, 1960, the appellants planted sisura trees on the extremities of their plots Nos. 377 and 840 and also planted mango trees thereon two years thereafter. The sisum and mango trees have now become grown up and their branches extend beyond the limits of the land belonging to the appellants, protecting over the adjoining culturable lands of respondent No. 1. Accordingly, respondent No. 1 brought the suit for removal of those trees and also for damages to the tune of Rs. 50/- against the appellants.
3. The plea of the appellants was that the trees planted by them in survey Plots Nos. 377 and 840 do not cast any shadow on the lands of respondent No. 1 and as such no damage is caused to the crops of respondent No. 1. The further defence of the appellants was that the trees stand on their own plots, viz, plots Nos. 377 and 840, and respondent No. 1 not having suffered any damage nor likely to suffer any damage was not entitled to get a decree for removal of the trees or for damages on account thereof.
4. The learned Munsif held that the trees in question caused nuance and damage to the lands of respondent No. 1 and also affected their yield. He also found that respondent No. 1 was entitled to a decree for removal of the trees planted on plots Nos. 377 and 840 mentioned in schedules 3 and 4 of the plaint. Consequently, the suit was decreed and respondent No. 1 was held entitled to recover damages to the tune of Rs. 50/- from the appellants.
5. On appeal, the learned Additional Subordinate Judge set aside the decree for damages on the ground that respondent No. 1 had failed to prove the extent of damage to his crops, but the decree for removal of the trees was maintained. He directed that the defendants-appellants shall cut and remove the sisum and mango trees planted on the entire length of the southern boundary of survey plot No. 377 from its western extremity to its eastern extremity as also the sisum and mango trees planted on the entire length of the northern and southern boundary lines of plot No. 840 from their western extremity up to their eastern extremity, within two months from the date of his Order, failing which the same would be removed through Court at the cost of the defendants-appellants.
6. Mr. Jai Narain appearing on behalf of the appellants contended that the Courts below have erred in law in directing the removal of the trees standing on the plots belonging to the appellants. He also submitted that on the finding of the learned Additional Subordinate Judge no damage had been proved.
7. It has to be stated at the outset that there is a positive finding of both the Courts below that the trees standing on plots Nos. 377 and 840 have caused damage to the crops standing on the plots belonging to respondent No. 1, The lower appellate Court, however, set aside the decree for damage allowed by the trial Court because the extent of damage to the crops of respondent No. 1 had not been proved. In spite of this, it has affirmed the finding of the trial Court that crops of plots Nos. 374, 375, 839 and 840 belonging to respondent No. 1 are damaged by the sisum and mango trees standing on the boundaries of plots Nos. 377 and 840 belonging to the appellants. The other finding arrived at by the learned Additional Subordinate Judge is that as a result of penetration of file roots of the trees planted upon the boundary lines of the land of the defendants-appellants and shadow of the trees being cast upon the land of the plaintiff-respondent, if the trees were allowed to remain and ow, the shaded portion of the land of the plaintiff-respondent would be rendered barren and useless for cultivation and the plaintiff would be deprived of the produce of that portion of his land causing damage to him. To put an end to this nusisance therefore, the learned Additional Subordinate Judge has, for the reasons stated above, directed removal of the trees standing on plots Nos. 377 and 840 belonging to the appellants.
8. On the finding arrived at by the learned Additional Subordinate Judge which is in conformity with that of the trial Court, it has to be seen whether the direction given by the learned Additional Subordinate Judge for removal of the trees standing on plots Nos. 377 and 840 is Justified in the eyes of law. It seems to me that on the authority of Lakshmi Narain Banerjee v. Tara Prosanna Banerjee, (1904) ILR 31 Cal 944, the judgment
and decree passed by the learned Additional Subordinate Judge do not suffer from any error of law. In that case the plaintiffs and defendants were adjoining land owners. On the case of the plaintiffs, the defendants had planted near me boundary several trees, the branches of which overhung the plaintiffs’ land and caused damage to their wall and the roots of which penetrated the foundation of their building and wall and effected cracks therein. The plaintiffs prayed for a mandatory injunction for removal of the trees and also for perpetual injunction restraining the defendants from planting any trees on their land near the boundary line which might cause damage to the wall and the foundation of then building. The claim was resisted on the ground that the defendants were at liberty to use their land in any manner they pleased, that the trees had existed for a number of years and were consequently not liable to be removed and that, as a matter of fact, no damage had been suffered by the plaintiffs. The learned Munsif came to the conclusion that if the trees were allowed to remain, their roots would grow and would inevitably damage the building. Mandatory injunction prayed for directing removal of the trees was granted to the plaintiffs but the prayer for perpetual injunction was refused. The plaintiffs and the defendants, both, preferred appeals to the District Judge. The District Judge came to the conclusion that the trees were situated very close to the plaintiffs wall and the branches had already caused damage and the roots of the trees had touched the foundation threatening to damage it. Accordingly, the District Judge granted a perpetual injunction in respect of those trees and maintained the order passed by the learned Munsif granting mandatory injunction for removal of the trees. The order passed by the District Judge was upheld by the High Court. Relying on Bindu Basini Chowdharni v. Jannabi Chowdharani, (1896) ILR 24 Cal 260, it was held that an injunction could be asked for and granted not only where an injury had taken place but also where injury had been threatened; in other words, it might be granted not merely to prevent the recurrence but also the occurrence of the injury. Their Lordships further held that a case had been made out for grant of a mandatory injunction for removal of the trees as also for a perpetual injunction restraining the defendants from planting any trees which were likely to damage the foundation of the building and the wall. So far as the present case is concerned, no prayer for perpetual injunction has been made in the plaint, but there is a specific prayer for grant of a mandatory injunction for removal of the trees. The said prayer has been rightly allowed by the learned Additional Subordinate Judge.
9. There is no merit in this appeal. It is accordingly dismissed, but without costs.