071-NLR-NLR-V-37-SUNTHARAM-v.-et-al.-v.-SINNATAMBY–et-al.pdf
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Suntharam v. Sinnatamby.
1935Present: Dalton S.P.J. and Koch J.
SUNTHARAM et al. v. SINNATAMBY et ah151—C. R. Mallakam, 8,745.
Overhanging trees—Landowner's right to cut branches—Law in Jaffna—Cultivated fruit trees—Thesawalamai.
Under the Thesawalamai a landowner is not entitled to have the over-hanging braches of a cultivated fruit tree growing on an adjoining landcut off.
^tASE referred by Akbar J. to a Bench of two Judges.
Plaintiff and defendant are owners of adjoining lands in Jaffna.Branches of some jak trees in defendant’s land overhang the plaintiff’sland and render plaintiff’s land unfit for tobacco plantations.
Plaintiff brought this action to have it declared that the overhangingbranches should be cut off.
The learned Commissioner held that the case was covered by thedecision Kandasamy v. MaiIvaganam1 and dismissed the plaintiff’s action.
S. J. V. Chelvanayagam, for plaintiffs, appellants.—The case of Kanda-samy v. Mailvaganam (supra) has been wrongly decided—That decisionis based on paragraph 3 of section III. of the Thesawalamai. Paragraph 3of section III. speaks of the rights of ownership in overhangingbranches and the fruits on those branches. It is silent on therights of the owner of the land that is overhung to cut off thebranches. The right to cut the overhanging branches is independentof the right of property in the branches themselves. If the owner
1 3 Bal. Reports 64.
Sunthqram v. Sinnatamby.
325
of the land that is overhung be also the owner of the over–hanging branches, then the question of his right to cut will not arise,since the owner could do what he pleases with the branches that belongto him. It is when the owner of the land that is overhung is not theowner of the overhanging branches that the question arises as to whetherhe could cut the overhanging branches or not. This right to cut theoverhanging branches is. really a right that flows from the ownershipof the land underneath. The owner of land is also the owner of all thespace above it. He has a right not to allow his neighbour to encroachon that space. All systems of law have considered this right fromthis point of view, viz., English law, the Roman-Dutch law, and theIndian law. They consider the overhanging 'branches as constituting■ a nuisance on the land over which they hang. If that be so we cannotgo to the Thesawalamai to see what the law of nuisance in Ceylon is.It must be the same in Jaffna as elsewhere in Ceylon.
It is true that paragraph 3 of section III. of the Thesawalamai has a refer-ence to the right to cut the overhanging branches of wild trees, butthis is mentioned incidentally and has no connection with the subject-matter of section HI. which purports to deal with rights of possessionand of ownership. Moreover the mention of the right to cut thebranches of wild trees does not logically lead to the inference that noright exists to cut the branches of cultivated trees.
Counsel cited Lemon v. Webb' Joshi v. Ragunath Oka'.
Manicavasagar, for defendants respondents.—Paragraph 3 of section III.must be taken as a whole.
Primarily it draws a distinction between fruits of cultivated treesand fruits of uncultivated trees.
But it deals with much more than the division of produce where atree hangs over the ground of a neighbour.
The second paragraph of section III. specifically gives the right to aneighbour to cut off the branches of uncultivated trees that overhanghis ground: the relevant passage reads thus:
“And he (i.e., the neighbour) is even at liberty to cut the branches
if they hinder him, and sell the same without the consent of the owner
of the ground on which the trees stand. ”
It is not correct to argue that the Thesawalamai is silent on this rightto cut off branches-of overhanging trees.
The argument of counsel for appellant will only apply if the Thesa-walamai had no provision in respect of the right which a neighbour hasto cut branches of trees that overhang his compound.
It is correct to construe paragraph 3 of section III. as giving such aright to a neighbour in respect of uncultivated trees, but not in thecase of trees cultivated with trouble and labour.
Counsel”?rr?ri't’ V **si*'"nf S1ipT/l) .
* (1893) 0 A. Cp. 1.
Cur. adv. vult.
2 43 Bombay 169.
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DALTON S.P.J.—Suntharam v. Sinnatamby.
December 9, 1935. Dalton S.P.J.—
This appeal by the plaintiffs in the Court below was reserved by Akbar J.for the opinion of a Court of two Judges, to enable a decision of thisCourt by Grenier J. in Kandasamy v. Mailvaganam' decided in theyear 1905 to be reconsidered, if necessary.
The plaintiffs and defendants are Jaffna Tamils and adjoining land-owners at Mallakam near Jaffna in the Northern Province. On thedefendants’ land are five jak trees, at least 50 years old, eight cubitsfrom the boundary fence and inside the defendants’ land. The branchesof these trees overhang the plaintiffs’ land, which is used for tobaccocultivation. There is no admission or evidence in the lower Court asto the extent to which the branches overhang the plaintiffs’ land, but aninspection by the Commissioner, as recorded in his judgment, showedthat the branches of the five trees overhang and overshadow a stripof the plaintiffs’ land, about eight to ten cubits wide, all along the lineof the fence, at a height of from 20 to 25 feet. There was also a claimfor damages on the one side and compensation on the other, but noevidence was led on these points, the law alone being argued.
The main claim of the plaintiffs was for an order that the defendantsdo cut off the branches overhanging their land and be ordered to pay asum as damages and continuing damages until they do so. It doesnot seem to be suggested that the plaintiffs are entitled to cut off thebranches themselves. The main legal question raised for decision waswhether the Thesawalamai or Roman-Dutch law was applicable. Thisquestion the Commissioner has answered in favour of the defendants,that the Thesawalamai is applicable, holding that the decision inKandasamy v. Mailvaganam (supra) is decisive of the matter.
Section III. of the Thesawalamai deals with the possession of land.Paragraph 3 of that section is headed “ Division of produce where fruittrees overhang the ground of another ”. A perusal of paragraph 3shows, however, that it deals with more than the mere division ofproduce. It first of all makes a distinction between cultivated fruitbearing trees and trees which “ grow of themselves without having beenplanted or any trouble having been taken”. It is agreed in this case byall parties that jak trees are cultivated fruit bearing trees. The para-graph goes on to provide that if cultivated fruit bearing trees overhanga neighbour’s property, the fruit remains the property of the planter,and the neighbour has no right to claim the fruit. In the case of othertrees, however, such as tamarinds, illupai, and margosa, the fruit belongsto the person whose ground the trees overshadow, presumably when thesun is directly overhead. The first portion of this paragraph does notdeal with the question of cutting down overhanging branches.
The second portion of the paragraph appears to commeijce by givinga reason why the fruit of trees overhanging a neighbour’s land shouldnot belong to the person on whose land the trees stand. It states thatthe trees have grown without labour or trouble “ and he is not to bethe owner of the branches and fruit which grow over his neighbour’sground, the fruit of such branches being indisputably his (i.e., the neigh-bours) and he is even at liberty to cut the branches, if they hinder him,
' 3 Bal. 0i.
Wickremesinghe v. Obeysekere.
327
and sell the same for his own profit without the consent of the owner ofthe ground on which the trees stand It further provides that “ theowner of the branches ” cannot prevent “ the owner of the tree ” fromcutting it down, but if he does so, he must give the branches to the personover whose ground they hang.
The second portion of paragraph 3 deals with non-cultivated treesonly, and would seem to be drawing a distinction between the ownershipof the overhanging fruit and branches of cultivated fruit trees on theone hand and that of trees that have grown up of themselves on theother. The former remain “ the entire property of the planter ”, and, asI read the paragraph, the neighbour has no rights in them at all. Theparagraph, it is true, is not as clear and explicit as it might be, but itmust be read as a whole, and I have construed it as best I can. It mayappear to be to some extent unreasonable, having regard to presentday numbers of population and conditions of cultivation in the NorthernProvince, that a neighbour should have to put up with inconveniencecaused by an adjoining landowner’s overhanging fruit trees, but it isnot for this Court to alter the law. It may possibly be that owing toclimatic reasons such difficulty seldom arises, for cases of this kind inthe Courts would appear to be very few in number, although litigationgenerally is plentiful. No question arises here of any custom orcustomary law being abrogated by disuse.
It follows therefore from what I have stated that I have come to thesame conclusion as Grenier J. in Kandasamy v. Mailvaganam (supra).The learned Judge there has referred to some old decisions in Muttu-kisna’s edition of the Thesawalamai covering the years 1825 to 1859.In all these cases, as Grenier J. points out, a distinction seems to be care-fully drawn between cultivated trees and wild and uncultivated trees.This distinction extends even to the right of ownership in overhangingbranches. One old case deals, it is interesting to note, with fruit of acultivated tree that has fallen on the neighbour’s land, and with theright of the owner to go and retrieve it.
I have therefore come to the conclusion that the Thesawalamai appliesto the matter in dispute and the Commissioner of Requests correctlyso held. The appeal must therefore be dismissed with costs.
Koch J.—I agree.
Appeal dismissed.