Mookerjee, J.:— This is an appeal by the plaintiffs in a suit for permanent injunction to restrain the execution of a decree obtained by the first defendant against the second defendant for the removal of a Nim tree. The tree stands on the boundary wall of the land of the second defendant, and its roots have penetrated into the adjoining wall of the house of the first defendant. The consequence has been that the wall has been cracked and the house has been injured. In these circumstances, the fir it defendant instituted a suit against the second defendant for a mandatory injunction for the removal of the tree and for damages. On the 30th May, 1917, that suit was decreed, and the first defendant became entitled to remove the tree Unless the second defendant removed it within fifteen days. That decree was affirmed on appeal on the 22nd January, 1919. Thereupon, the plaintiffs instituted the present suit on the allegation that the tree, was a sacred tree, that it had been duly consecrated, that it was worshiped by the orthodox Hindu people of the locality, and, that its removal would be an invasion of their religion and would offend their religious sentiments. The Court of first instance decreed the suit, granted a permanent injunction and authorised the first defendant to take out within a month bricks from the wall on which the tree stands, thereby causing an open space between the tree and his wall, and place there an iron-plate between the tree and the walls be prevent penetration of roots into his wall in the future. Upon appeal, the Subordinate Judge has reversed this decision and dismissed the suit. In support of the present appeal, the plaintiffs have contended that a permanent injunction should be granted to prevent removal of the sacred tree in execution of the decree.
2. There is no room for controversy that the decree was made by a Court of competent jurisdiction and was based on wall-established legal principles.
3. The decision in Lakshmi Narain v. Tara Prosanna (1) affirms the proposition that as every owner of land is under an obligation not be allow the tranches of his tree to grow so as be over-bang, or the roots of his tree be extend so as be penetrate, his neighbour's land be the detriment of the latter, in case of breach of such an obligation it is open be the Court to grant a mandatory injunction for the removal of the nuisance, under section 55 of the Specific Relief Act. In support of this view, reference was made be the decision of the House of Lords in Lemmon v. Webb (2) which affirmed that of the Court of Appeal in Lemmon v. Webb (3). The view taken there had been propounded three centuries earlier in Norris v. Baker (4). (See also Viner's Abridgment Vol. XX p. 417). The same view has been affirmed directly or by implication in subsequent cases; amongst these may be mentioned Smith v. Gidiy (5); Cheater v. Cater (6); Mills v. Breaker (7). This is by no means a singular rule of law and in this connection reference may be made to the Code Napoleon br Barrett: Article 672 provided as follows: “He whose property the branches of a neighbour's trees overhang, may force the latter to out such branches. If the roots extend into his heritage, he has the right of cutting them himself.” Article 673 was in these terms: “Trees growing in a party hedge are party like the hedge; and each of the two owners has the right of requiring that they be out down”. Article 673 of the French Civil Code (tr. Wright) contains the following provision: “A person over whose property the branches of a neighbour's trees grow can compel such neighbour be cub them. Fruit that falls naturally from such tranches belong be the owner of the soil over which they grow. A person has the right be out the roots of treas belonging be an adjoining owner which grow into his land. The right be out the roots or have the tranches cub Cannot be lost by prescription (non-user).” See also Pothier, Traite de contract de soclete, second Appendice, Article 243. (Oeuvres Ed. Bugnet, 1861, Vol. 4, p. 332); Huq. Commentaire du Code Civil, Vol 4, p. 457; Wang, German Civil Code, Article 910; Schuster, German Civil law, p. 388.
4. On what principle, then, can the plaintiffs demand that a perpetual injunction should be granted to prevent the execution of the decree? Under section 64 of the Specific Relief Act a perpetual injunction may be granted be prevent the breach of an obligation existing in favour of the applicant, whether, expressly or by implication. The plaintiffs must, consequently, specify the obligation which exists in their favour and would be infringed by the execution of the decree held by the first defendant against the second defendant. The plaintiffs can succeed only if they can, establish first, that the first defendant is under an obligation be keep on her land a tree considered sacred by the plaintiffs, even though the tree does damage to the proper by of the adjoining owner, and, secondly, that the second defendant is under an obligation to acquiesce in the continued existence of such a tree on the lane of the adjoining proprietor even though such tree does damage be his own property. There must be obligations recognised by law. Section 3 of the Specific Relief Act states that the term obligation includes every duty enforceable by law. We need not attempt an exposition of the full significance of the term obligation. But obligation may be taken to be a the or bond which constrains a person be do or suffer something; it implies a right in another person be which it is correlated, and it restricts the freedom of the obligee with reference be definite acts and forbearance; but in order that it may be enforced by a Court, it must be a legal obligation, and not merely moral, social or religious. Neither authority nor principle has been invoked in support of the alleged legal obligation which the plaintiffs seek be impose upon the defendants on the ground that the tree has been consecrated and is held sacred by the plaintiffs as pious Hindus. We are not unmindful that certain trees are regarded with great veneration; Dino Nath v. Protap Chandra (8), Baiju Lal v. Bulak Lal (9). Thus the Asvatha tree, the Tulsi plant and the Bilva tree are objects of worship. The first is sacred be Aditya, the second be Vishnu and the third to Shiva. The Kadamba tree in the Minakshi temple at Madura and the Jambu tree in the temple of Jambukeswara near Trichinopoly are regarded With great sanctity. It may also he conceded that according; to the Hindu Sastras, special religious merit accrues from the planting of trees on the road side, on the banks of tanks and in gardens or groves; and the Sabras also inculcate the fear of various punishments (by visitation of various sins) on those who fell trees; indeed special ritual is prescribed for the planting of trees for the benefit of the public (see Prannath Saraswati, Hindu Law of Endowments, Tagore Law Lectures, 1892, Chap. IX, pp. 230-246; see page 234, where the rules ordained by Manu and Vishnu for the infliction of punishment upon persons who destroy trees are quoted from Manu 1-48, VIII-285, XI-143, 148, Vishnu V-55-59). But the view cannot be maintained that the rules so prescribed in the ancient texts are authorities in favour of the recognition of a legal obligation of the requisite character. We hold accordingly that the refusal to grant a perpetual injunction will not lead to the breach of an obligation, that is, of a duty enforceable by law which the plaintiffs can compel the defendants to perform. No foundation has thus been laid by the plaintiffs for the grant of a perpetual injunction.
5. The result is that the decree of the Subordinate Judge must be affirmed and this appeal dismissed with costs.
6. Appeal dismissed.