Judgment:
V. Ramkumar, J.
1. An interesting question of arboreal forensics comes up for judicial resolution in this case.
Does the fall of a tree on the neghbour's property causing damage give rise to any tortious liability and if so, whether it is the tort of 'trespass to land' or the tort of private nuisance?
2. The appellant in this appeal is the plaintiff in O.S. No. 926 of 1993 on the file of the II Addl. Sub Judge's Court, Ernakulam. The said suit was one for realisation of a sum of Rs. 30,000/- by way of damages.
THE PLAINT AVERMENTS
3. The case of the plaintiff can be summarised as follows-The plaintiff (T.K. Simon) is residing on the southern side of the property of the defendant Company (H.M.T. Ltd., Kalamassery). On 3-7-1993 a big tree belonging to the defendant fell into the plaintiffs property heavily damaging the plaintiff s compound wall, pipeline and roof of the building. The plaintiff had informed the defendant about the dangerous position of the defendant's tree. The plaintiff also informed the defendant by letter dated 5-7-1993 that on account of the fall of their tree the aforementioned damage had occurred. The defendant's officers came and inspected the damage and promised to make good the loss. But there was no further response. As there was no response from the defendant in spite of Ext.A2 letter and repeated requests, the plaintiff caused Ext .A3 lawyer notice dated 25-8-1993 to be issued to the defendant demanding payment of Rs. 30,000/- as loss on account of the aforesaid damage. The defendant sent Ext.A4 reply notice dated 22-9-1993 denying its liability on account of the fall of the tree. A sum of Rs. 10,000/- is estimated as compensation for the damage to the compound wall and Rs. 15,000/- as the damage to the roof of the building. Another sum of Rs. 5,000/- is estimated towards the damage to the pipeline and pump shed. The cause of action arose on 3-7-1993 when the defendant's tree fell on the plaintiffs property and on 22-9-1993 when the defendant sent Ext.A4 reply denying the liability, at Kalamassery. Hence, the suit.
THE DEFENCE
4. The suit was resisted by the defendant contending inter alia as follows:
The suit is not maintainable in law. It is admitted that a tree standing on this defendant's land was uprooted and had fallen on the compound wall of the plaintiff. But the tree had fallen not on account of any act of this defendant but only because of the heavy rains and strong winds which uprooted the tree. This defendant is not liable for any loss caused to the plaintiff as the cause for the fall of the tree was vis major. The alleged damage has been exaggerated. In fact, some damage was caused to the compound wall and the pipe line and it was very negligible. There was no damage caused to the roof of the plaintiffs building on account of the fall of the tree. The allegation that the plaintiff had informed the defendant about the dangerous position of the tree is false and is hereby denied. The tree was not in a dangerous condition. If the tree was in a dangerous condition, this defendant would have cut and removed it. It was only by Ext.A2 letter dated 5-7-1993 that the plaintiff informed this defendant for the first time that the tree had fallen. The plaintiff had never informed anything about the tree before that. The tree was in a normal state of health and there was no patent or latent defect or disease for the tree. It is true that on receipt of Ext.A2 letter, officers of this defendant had gone and inspected the site. But the allegation that the officers had promised the plaintiff to make good any loss is denied as baseless and untrue. There is no liability in law on the part of this defendant to make good any loss caused by the act of the forces of nature. To Ext A3 notice, this defendant had caused Ext.A4 reply stating true facts. Apart from Ext.A2 letter and A3 lawyer notice, the plaintiff had not made any other request. The assessment of the damages at Rs. 30,000/- by the plaintiff is highly exorbitant and exaggerated. The total loss suffered by the plaintiff on account of the damage to the wall and the pipeline is far below Rs. 2,000/-. This defendant denies the existence of any pump shed at the time of the fall of the tree. Likewise, the plaintiff has not sustained any damage to the roof of the building due to the fall of the tree. The cause of action alleged is not true. The suit which is a speculative one is liable to be dismissed with costs.
THE TRIAL
5. The learned Subordinate Judge framed four issues for trial. On the side of the plaintiff, two witnesses were examined as P.Ws 1 and 2 of whom P.W.I is the plaintiff himself and P.W.2 is the Advocate Commissioner who was deputed by the court below at the instance of the plaintiff. On the side of the defendant company its Executive Manager was examined as DW1 and ExtBl inward register book for the period from 12-4-1993 maintained by the defendant was marked. The report of the Advocate Commissioner (PW2) was marked as Ext.Cl.
6. The learned Subordinate Judge as per judgment and decree dated 30-6-1995 decreed the suit in part granting a decree for Rs. 10,000/- with interest at the rate of 12% per annum from 3-7-1993 till the date of decree and thereafter at the rate of 6% per annum till realisation. It is the said judgment and decree which are assailed in this appeal by the defendant.
7. I heard the learned Counsel appearing on either side.
THE PLAINTIFF/RESPONDENT'S ARGUMENTS
8. The learned Counsel appearing for the plaintiff/respondent made the following submissions before me in support of the decree:
The tree in question was in a dangerous condition leaning towards the property of the defendant. Since there was the likelihood of the tree falling with the onset of monsoon, the plaintiff as per ExtAl letter dated 5-5-1993 had informed the defendant about the dangerous condition of the tree and asking the company to do the needful. The apprehension of the plaintiff came true during the night of 3-7-1993 at a time when it was raining. There was no unprecedented storm or thunder showers in that night. Eventhough consequent on Ext A2 intimation dated 5-7-1993 given by the plaintiff to the defendant, the officials of the company inspected the site and promised to make good the loss sustained by the plaintiff, they remained unresponsive thereafter. It was the above conduct which compelled the plaintiff to institute the suit. DW1 has admitted that there are about ten thousand trees in the estate compound of the company and every three months the trees were inspected and dried and damaged trees used to be cut and removed. He has also admitted that there were reports of inspection of the trees. If so, those reports, if produced, would have shown that the tree in question was in a dangerous condition. But, for reasons best known to the defendant, such reports were not produced before court. The Court below has come to the right conclusion. If at all the court below has erred that was in not awarding the full amount claimed in the suit. The judgment and decree do not call for any interference.
JUDICIAL RESOLUTION
I am afraid that I cannot agree with the above submissions. Except stating in the plaint that on 3-7-1993 a big tree belonging to the defendant fell causing damage to the compound wall, pipeline and roof of the plaintiffs building the plaint does not allege any negligent conduct by way of act or omission on the part of the defendant behind the fall of the tree. There is not even a whisper in the plaint that the tree was in a dangerous condition or that it was leaning towards the plaintiffs property. But when examined before court as P.W.I the plaintiff who was aP.W.D. Engineer would come out with a case that the tree was a very big tree standing near the boundary of the defendant's property and that the tree was in such a condition that it would fall any moment, P.W.I would even go to the extent of saying that it was when the tree started leaning towards his property that he sent ExtAl letter. There is of course, a solitary sentence in para 1 of the plaint that the plaintiff had informed the defendant about the dangerous position of the tree. ExtAl is alleged to be the plaintiffs copy of a letter dated 5-5-1993 said to have been sent by the plaintiff through ordinary post to the General Manager of the defendant company. The said letter reads as follows.
Sir,I am residing at the southern side of your rood near H.M.T. Junction. One of your trees standing by the side of above road is likely to fall-especially due to the incoming Monsoon. I am afraid if the tree falls it may cause damage to my property. Kindly do the needful as early as possible
9. The defendant has emphatically denied having received any such letter. The definite stand taken by the defendant is that the tree in question was a healthy tree having no patent or latent defect and that it was not leaning towards the plaintiffs property at any point of time. The defendant has maintained that the plaintiff had never informed the defendant either orally or through letters that the tree was in a dangerous condition. ExtBl is the inward register maintained by the defendant company from 12-4-1993 onwards. ExtBl register is conspicuously silent about the receipt of ExtAl letter dated 5-5-1993 allegedly sent by the plaintiff through ordinary post. Ext A2 copy of the letter dated 5-7-1993 sent by the plaintiff to the General Manager of the defendant Company informing the latter about the fall of the tree and the damage to the plaintiff has admittedly been received by the defendant. While ExtA2 is in the letter-head of the plaintiff, ExtAl is on a plain paper. The denial by the defendant of having received ExtAl letter gains more significance when we find that there is absolutely no reference about ExtAl letter either in Ext.A2 subsequent letter or in Ext A3 lawyer notice sent thereafter. P.W.I has not produced any material to show that ExtAl was dispatched by post or that it was received by the defendant. Moreover, a perusal of ExtAl letter shows that it is not a carbon copy but typewritten in original. If so, the inescapable conclusion can only be that ExtAl letter was cooked up solely for the purpose of this case. In Ext.A2 letter and A3 lawyer notice there is absolutely no allegation of any negligent conduct on the part of the defendant behind the fall of the tree.
10. According to the defendant, the tree fell as a result of torrential rain and unprecedented storm in the night of 3-7-1993. Event hough the plaintiff examined as P.W.I initially denied the suggestion put to him that there was torrential rain and thunder storm in that night P.W.I later confessed that there was rain during that night when the free fell down. The defendant is the Hindustan Machine Tools which is a public sector undertaking having extensive campus containing more than 10,000 trees. The property of the plaintiff is situated to the south of the compound of the defendant. Going by ExtAl the tree in question is one of the trees standing by the side of the road belonging to the defendant Company and situated near H.M.T. junction at Kalamassery. The plaintiff (PW.I) has admitted that shade trees were planted on either side of the said road leading to HM.T. and the tree in question had a length of about 25 feet for its main trunk and a girth of 4 feet with several branches some of which were overhanging on the plaintiffs property. P.W.I has further deposed that it was a fully flourished tree providing shade during the summer and its shade covered the plaintiffs compound as well. It is admitted by P.W.I that the tree in question was 8 feet away from his compound and 20 feet away from hid engine shed. P.W.I has unequivocally confessed that it was a fully - grown tree having no damage or defect whatsoever and that the tree was virtually uprooted, (If the tree was having no defect and was virtually uprooted during the rains in the night of 3-7-1993 and absolutely no allegation of negligence is attributed to the defendant behind the fall of the tree, then the above circumstances probabilise the defence version rather than the plaintiffs version. When even according to DW1 there was no inspection report pertaining to the tree in question, there was no duty cast on the defendant to produce any such inspection report.
11. A simple instance of a tree standing on the property of the defendant falling upon the neighbouring property of the plaintiff and causing damage can give rise to complex legal issues. In the first place, it is difficult to say whether it is a case of trespass to land or a private nuisance. Both trespass to land as well as private nuisance can create tortious liability. But the line of distinction between the two species of tort is very often thin in cases where a tree belonging to the defendant were to fall onto the property, of the plaintiff as a result of some indirect negligent act or omission on the part of the defendant. it is important to note that while the tort of trespass to land is actionable perse, the tort of private nuisance is actionable only on proof of damage. If the interference is direct and controlled by the defendant's volition, it is a case of trespass to land. For example, if the defendant were to cross onto the land of the plaintiff or if the defendant were to construct a building in his own property in such a way as to project into the neighbouring land of the plaintiff or if the defendant were to dump garbage or other waste in the plaintiffs land or to cause any physical object or noxious substance to cross the boundary onto the plaintiffs land or discharge filthy water upon the plaintiffs land or erect a sign - board projecting into the superincumbent air space of the plaintiff, then the defendant could be said to have committed trespass to land. This is based on the distinction that the injury caused is direct and not consequential and the defendant had control over the act complained of. But if the roots or branches of the defendant's tree were to cross over to the plaintiffs land, the interference is indirect and the injury is only consequential and, therefore, it is a case of private nuisance because the defendant does not have any control over the growth of the roots or branches of the tree. Even in a case where the rule in Rylands v. Fletcher is attracted, the defendant may escape liability if the cause of action alleged is attributable to Vis major (act of God). Vis major' is an occurrence which is not only unforeseen but incapable of being foreseen and absolutely incapable of being prevented or guarded against. (See - Dhanrajmal Gobindram v. ShamjiKalidas and Co. : AIR 1961 SC 1285).
12. In the case of a tree the branches of which are overhanging into the neighbour's land such neighbour has the extra-judicial remedy of cutting or lopping those overhanging branches even without the intervention of the court or the necessity of a lawsuit and can thus abate the nuisance. But, as has been seen, the volition or control of the owner of the tree is not always decisive of the question as to whether the fall of the tree amounts to trespass to land or private nuisance.
13. There is no evidence in this case as to what was the species to which the tree in question belonged or its age or period of longevity. During the cross-examination of D.W.I it was elicited by none other than the plaintiff that there are about 10,000 trees in the compound of the defendant company. There was no allegation, much less any evidence, to the effect that the tree was belonging to a particular species and it had outlived its term of longevity or was so badly maintained as to fall down in the normal rains or was either dead, diseased or damaged. Similarly, there was no allegation except for the first time in the oral evidence of the plaintiff that the tree was dangerously leaning towards the property of the plaintiff so as to expect a duty on the part of the defendant towards persons who would ordinarily suffer injury if the tree were to fall. Even in the plaint there is no allegation that the tree was dangerously leaning towards the property of the defendant. The only allegation in the plaint is that the plaintiff had informed the defendant about the dangerous position of the tree. In what way the position of the tree was dangerous, has not been explained. Unless the tree belongs to any of the aforesaid categories it is not possible to say that the defendant ought to have anticipated the mishap or that the fall of the tree was within the range of reasonable foreseeability. Evidently, the tree was not a self sown tree but was planted by the company along with other trees. Hence, in the absence of any plea, much less any evidence of a negligent conduct on the part of the defendant company in maintaining the tree, the plaintiff was not entitled to bring the action for damages either on the ground of trespass to land or private nuisance. The judgment and decree passed by the court below overlooking these vital aspects of the matter cannot be sustained and are accordingly set aside. The suit will stand dismissed. However, having regard to the facts and circumstances of the case, the parties shall bear their respective costs in this appeal.
Dated this the 9th day of Jane, 2009.
Sd/- V. RAMKUMAR, JUDGE.
CROSS OBJECTION
Dissatisfied with the decree for Rs. 10,000/- passed by the court below by way of damages, the plaintiff has preferred a memorandum of Cross Objection under Order XLI Rule 22 C.P.C. Since it has already been held that without pleading and proving negligence on the part of the defendant-company behind the fall of the tree the plaintiff was not entitled to claim any damages, this Memorandum of Cross Objection is misconceived and is accordingly dismissed. No costs.