S.S. Dhavan, J.
1. This appeal is one of two connected appeals by a defendant from two concurrent decrees of the Courts below ordering him to remove obstructions which prevented the plaintiff respondent to use certain par nalas. The plaintiff claimed an easementary right The defendant resisted both suits and contended that the plaintiff had not perfected his rights by prescription. He also pleaded that the easement, if any had been imposed by a mortgagee of the servient tenement in collusion with the plaintiff and had been extinguished on the redemption of the mortgage.
2. Both the Courts have found that the plaintiff had perfected his easementary rights and that the easement in each case had not been imposed by any mortgagee.
3. It is however, argued by learned counsel for the appellant that the lower appellate Court erred in holding, in appeal No. 258 of 1963 before him, that the plaintiff had acquired a prescriptive right to discharge on the appellant's land filthy water containing faecal matter and other filth from his latrine. I am inclined to agree Mr. Ambika Prasad admitted that the plaintiff's sweeper cleans the latrine every day with water and the faecal matter and filth is discharged on the appellant's land.
Counsel argued that the lower appellate Court's finding that the plaintiff has acquired a prescriptive right to discharge filth on the appellant's land is sound I cannot agree. Throwing night soil on another's land is a wrongful ac! called nuisance, and no one can acquire a prescriptive right to commit nuisance on another's land. There is distinction between walking across another's land and throwing filth on it. The former is an act of trespass if committed without the consent of the other side while the latter is a nuisance. A right of way may be acquired by prescription if it is exercised openly and with the knowledge of the owner of the servient tenement, but a right to commit a nuisance cannot be acquired by prescription. no matter how often the act of nuisance is repeated I am fortified in this view by an observation of Le Rossignol J in Rukn-ud-din v. Altaf Ahmad. 60 Ind Cas 529 (1) (Lah). No case was cited by Mr. Ambika Prasad in support of his argument that the right to commit a nuisance can be acquired by prescription. He stated that he had been unable to find any authority.
4. Mr. Ambika Prasad however, argued that if the plaintiff is not permitted to discharge the filth from his latrine on the appellants land, he will not be able to discharge it at all. I am not impressed with this argument, and in fact it is against the plaintiff. No one has the right to claim that, filth being filth, he would -- rather pass it on to his neighbour than keep it on his own land. Moreover, the plaintiff can easily dispose of the night soil by asking his sweepers to collect it in receptacles and throw it in the public drain or any other place reserved for dumping filth. Mr. Ambika Prasad said that this would be inconvenient and expensive for the appellant. I am not at all impressed by this argument.
A person cannot claim the right to dump filth on another's land to save himself a little inconvenience or expense. Furthermore, it is open to the plaintiff to make a deal with the defendant and persuade him to sell or give him on perpetual lease a narrow strip of land to enable him to construct an underground or covered drain. But he cannot claim the right to discharge filthy matter on the appellant's land as a prescriptive right
5. I allow this appeal in part, and set aside the lower appellate Court's decree allowing the plaintiff-respondent's cross objection in appeal No. 258 of 1963 below, and dismiss the plaintiff's suit for an injunction to restrain the appellant from preventing the plaintiff from discharging filthy water and night soil or other filthy matter mingled with such water on the appellant's land. The result will be that the defendant's right to prevent the plaintiff from discharging such filth or filthy water is not affected. Subject to this proviso, the decree for injunction will stand.
The parties shall hear their own costs ofthis appeal.