P L D 1961 Dacca 174 (PLP)

The petitioners' predecessor, Altaf Ali, sued the defendants for the recovery of the sum of Rs. 150 on account of damages caused to their crops by the overhanging branches of trees -standing on the land of the opposite‑party. The claim of they original plaintiff was rested by the defendant‑opposite‑party on the ground that the suit land did not belong to him but belonged to his son Abdul Munnaf and his co‑sharers, Illias and Ashraf Banoo. The further case of the defendant was that, as a matter of fact, no damage was caused to the plaintiff's crops. The suit was decreed by the learned Munsif for a sum of Rs. 45 but on appeal preferred by the defendants the learned Subordinate Judge, Additional Court, Noakhali, has dismissed the suit holding that the suit land did not belong to the plaintiff alone and further that as the plaintiff could avoid the damage, if any, by cutting the branches of the trees, which overhung on his land, no damage could be claimed.

2. The learned Advocate for the petitioners has pointed out that the learned Subordinate Judge was entirely wrong in holding that the land in question did not belong to the plaintiff alone. It has been urged that the learned Subordinate Judge relied on the partition‑deed marked Exh. E to hold that the land belonged to the plaintiff as well as others and as the other co‑sharers were not parties to the suit, the plaintiff alone was not entitled to sue the defendants for damages. The learned Advocate points out that the partition deed, on which reliance was placed by the learned Subordinate Judge, is dated the 12th of Kartic 1331 B. S. which will correspond to some date in the month of October, or November 1924, whereas the deed of settlement Exh. 2, on which the claim of the plaintiff to the land is based, is dated the 4th of July 1938, It is admitted in this case that the land in question belonged to the plaintiff and his brothers and to his other co‑sharers originally and it was auction‑sold in execution of a rent decree. The plaintiff's claim is that he took settlement of the land from the auction‑purchaser after be took delivery of possession in pursuance of the purchase in the auction‑sale. It is difficult to understand how the learned Subordinate Judge on the basis of the partition deed Exh. E, in spite of the above admitted facts, came to the conclusion that the plaintiff was not the sole owner of the disputed land. In that view of the matter, the learned Subordinate Judge's finding in this regard cannot be sustained.

3. The learned Advocate for the opposite‑party has, however, tried to support the judgment of the learned Subordinate Judge on the ground that the plaintiff had no right to bring a suit for damages in this case. His contention is that since the plaintiff was in law, entitled to cut off the overhanging branches and avoid the damage he could not sue the defendants for any damage even if any such damage was caused to his crops. The learned Advocate, in support of this contention, has relied on the decision in the case of Mills v. Brooker ((1919) 1 K B 555). The facts of some of that case may be briefly stated as follows : The branches of some trees belong to the plaintiff overhung the defendant's land. The defendant picked apples of the overhanging branches and sold them. The plaintiff thereafter sued the defendant for damages. The defence of the defendant was that as he had the right to cut off the overhanging branches, on which the apples grew, he could remove the apples. It was decided in that case that where the branches of fruit trees growing near their owner's boundary overhung the land of the adjoining overn, the right of the adjoining owner to lop the branches did not carry with it the right to pick and appropriate the fruit and if he did so he was guilty of conversion and liable to the owner for its value.

4. Mr. Abdul Hye Chowdhury, the learned Advocate appearing on behalf of the opposite‑party, on the authority of this decision, argued that as the plaintiff had the right to remove the branches and as he did not do so and allowed the damage to be caused to his crops, he cannot sue the defendants for recovery of such damage.

5. I, however, find that there is a direct decision on this point which goes against the contention of the learned Advocate for the opposite‑party. In the case of Smith v. Giddy ((1904) 2 K B 448), it has been held that an action lies against an adjoining land owner for allowing his trees to overhang the boundary to the damage of the plaintiff's crop

3. The argument advanced by the learned Advocate for the opposite‑party was exactly the argument which was advanced in that case on behalf of the defendant but Wills and Kennedy, JJ., overruled that contention. I entirely agree with the principle enunciated in this decision and hold that since the plaintiff in this case has established that actual damage was caused to his crops an action lies against the defendants in spite of the fact that the plaintiff has the right to remove the over hanging branches.

6. The next ground on which the learned Advocate for the opposite‑party has tried to support the judgment of the learned Subordinate Judge is that the plaintiff originally sued nine persons for recovery of damages but the names of eight of them ware struck off by the Court by an order dated 27‑12‑57 as the plaintiff failed to take steps for effecting service of summons on them. It is contended that as the liability for damage was joint and as all the parties liable for such damages were not before the Court, the suit could not be proceeded against only one of them. In my view, there is no substance in this contention of the learned Advocate also. In case of tort, the liability of the wrong‑doers is joint and several and the person wronged against can either sue one or all of them for the recovery of the whole damage.

7. In view of my finding above, this Rule must be made absolute. The Rule, therefore, is made absolute with costs and the judgment and the decree of the learned Subordinate Judge are set aside and those of the learned Munsif restored. The plaintiff will be entitled to his costs of the lower Appellate Court also. K. B. A. Rule made absolute.