S.J. Hyder, J.
1. The plaintiff-appellant has been denied the relief sought by him on the ground that brick grinding machine of the defendant did not cause any substantial injury or special damage to the plaintiff. Learned Counsel appearing for the plaintiff has argued before me that the two courts below have not correctly appreciated the meaning of the expressions 'substantial injury' and 'special damgage,' as used in law.
2. The plaintiff-appellant commenced the action giving rise to this second appeal for permanent injunction to restrain the defendant-respondent from running his brick-grinding machine.
3. It is not in controversy between the parties that the plaintiff is a Medical Practitioner. He has built a consulting chamber before the brick-grinding machine was erected by the defendant-respondent. There is a controversy between the parlies as to whether the consulting chamber was established by the plaintiff in the year 1962 or in the year 1965. I shall refer to this controversy later in this judgment. It is also not disputed that the brick-grinding machine is electrically propelled and that it is situate at a distance of about 40 feet from the consulting chamber of the plaintiff-appellant in a north-eastern direction. There is a road which intervenes between the consulting chamber of the plaintiff-appellant and the brick-grinding machine.
4. The grievance of the plaintiff-appellant was that the brick-grinding machine was generating dust which polluted the atmosphere and entered the consulting chamber of the plaintiff-appellant and caused physical inconvenience to him and his Patients who came to his chamber. It was further stated that the said machine had been set up by the defendant-respondent without any permission or licence from the Municipal Board.
5. The defendant-respondent contested the suit. He did not deny that the machine was erected by him in April, 1965. He contended that no dust emanated during the process of grinding bricks and there was no question of any pollution being caused in the atmosphere. He further stated that the bricks were moistened before being subjected to grinding process and no dust resulted therefrom. He further staled that his machine did not produce any noise and according to him, the erection and working of the machine did not cause any nuisance--whether public or private. He concluded by saying that the suit had been filed against him only on account of enmity and the same was not legally sustain able,
6. The trial court came to the conclusion that the brick grinding machine had been erected by the defendant-respondent in the year 1965 without obtaining any licence from the appropriate authority. It further held that the dust did emanate and pollute the atmosphere and that such dust was injurious to health. It also came to the conclusion that the dust produced by the machine entered the consulting chamber of the plaintiff-appellant depending on the direction of the wind. It further found that the defence taken up by the defendant-respondent was false and the evidence produced by him could not be relied upon. It, however, dismissed the suit of the plaintiff-appellant on the finding that the dust resulting from the machine did not cause any substantial injury either to the plaintiff or to his patients. The trial court also went into the question as to whether the machine belonging to the defendant-respondent caused any actionable nuisance to the plaintiff-appellant and decided that controversy against him.
7. The court of appeal has affirmed the findings recorded by the trial court with a slight modification. Whereas the trial court had rejected the testimony of P. W. 1 Dr. Hari Shankar Prasad, who was Medical Officer of Health at Ghazipur, where the machine in dispute is situate, on the ground that the same is based on hearsay, the lower appellate court has accepted his testimony. Dr. Hari Shankar Prasad had categorically stated that dust which came out from the machine of the defendant-respondent entered the chamber of the plaintiff-appellant in large quantity. He further stated that on account of that dust, the clothes of the persons sitting in the chamber of the plaintiff-appellant became coated with red particles of earth.
8. Learned counsel for the plaintiff-appellant urged that on the facts found by the two courts below, the only legal inference which could be drawn was that the plaintiff suffered a substantial injury on account of the working of the machine and special damage was caused to him. On the other hand, the learned counsel for the defendant-respondent submitted that the finding recorded by the court of appeal on the question that no substantial injury was caused to the plaintiff-appellant and that he did not suffer any special damage are essentially findings of facts which cannot be called in question before this court in second appeal. I am unable to agree with the submission of the learned counsel for the respondent. In the case of Jugal Kishor v. Ram Saran Das, AIR 1943 Lah 306 it was held that the question whether certain proved facts established a nuisance was a question of law.
9. Learned counsel for the defendant-respondent has himself relied upon a Division Bench case of this court in Behari Lal v. James Maclean AIR 1924 All 392. In that case, the first court of appeal had come to the conclusion that the ads complained of by the plaintiff-respondent in that case constituted an actionable nuisance. I had accordingly decreed the claim for mandatory injunction made out on behalf of the plaintiff-respondent of that case. The Division Bench of this court treated the facts as found by the court of appeal as findings of fact only. It, however, went into the question whether in law the said facts amounted to an actionable nuisance. On this aspect of the case, this court differed with the first court of appeal and allowed the appeal preferred by the defendant-appellant and dismissed the suit of the plaintiff-respondent of that case. There is a plethora of decisions of different High Courts of this country in which only the facts found by the first court of appeal have been treated as findings of facts. The High Courts have nevertheless gone into the question whether on the facts found to have been proved, a legal 'inference whether a nuisance was or was not being committed could be gone into. It is unnecessary to burden this judgment by referring to all those decisions.
10. Now ordinarily it is a right of the owner of a property to use it in any manner he likes. Human beings are, however, social animals. The right to enjoy one's properly is, therefore, necessarily restricted so as to enable the owner of an adjoining property to use his own properly in a beneficial manner. No person has a right to make such user of his property as materially interferes with the similar right of his neighbour to enjoy his properly. The relations of the members of the society are necessarily to be governed by the principles of 'live and let live' and 'give and lake.' The rights of the owner of a property to use his own property are necessarily to be limited by the similar rights in others.
11. 'The essence of nuisance is a condition or activity; say Clerk and Lindsell in their work on 'Tort', 14th Edn. Para 1391, 'which unduly interferes with use or enjoyment of land.' They have further stated that nuisance is an act or omission which is an interference with, disturbance or annoyance to a person in the exercise or enjoyments of a right belonging to him as a member of the public, (when it is a public nuisance), or his owner-ship or occupation of land or of some easement, private, or other right used or enjoyed in connection with land, (when it is a private nuisance) In this case, I am not concerned with a public nuisance, since the claim of the plaintiff-appellant was based on a cause of action which is essentially based on private nuisance.
12. I have already stated that a person is ordinarily entitled to do any thing on his own property provided that doing of such a thing is lawful. His conduct, however, becomes a private nuisance when the consequence of his acts no longer remain confined to his own property but spill over in a substantial manner to the properly belonging to another person. However, any thing done by a person on his property, repercussions of which are felt on the neighbour's land, may not always be a nuisance. The consequences of any thing done by the owner of a land on his own land which are also fell over the neighbouring land may be of such a trivial nature that no reasonable person would object to the same nO precise or universal formula has been devised to determine the distinction between a trivial consequence of an act or a consequence which can be termed to be of substantial magnitude. The test which has always been found to be use-ful in distinguishing the two sets of cases is the test of ascertaining the reaction of a reasonable person according to the ordinary usage of mankind living in a particular society in respect of the thing complained of.
13. After a land had been built upon, the owner of the building cannot ex-peel to have air of the same quality which existed before the building was erected. The freshness of the air is necessarily diminished by the erection of the building. If the whole locality in which a building is situate is built upon, the quality of freshness of air will be diminished further and the same may become tainted to a certain extent. But when some thing is done by the owner of a neighbouring land upon his own land which is not comfortable or is wholly uncomfortable with physical comfort and human existence, the person aggrieved gets a right to sue. The act of the neighbour of which he will complain will be an actionable nuisance. At this stage, a note of caution may be sounded. In order to judge whether the air has been polluted to an extent that it has ceased to be comfortable with human comfort and existence, the standard to be employed again is the standard of a sober and reasonable mind. Concepts of elegant and dainty living will be wholly out of place. Further in judging the question of this comfort or danger to human existence on account of the act complained of, the location of a property is also a relevant circum-stance. A persons living in an industrial locality cannot claim to have as much fresh air as a person living in a non-industrial area.
14. In Ramlal v. Mustafabad Oil and Cotton Ginning Factory. Tek Chand, J. after a review of numerous decisions has formulated a number of principles to determine whether an injury complained of amounts to actionable nuisance or not. If I may say so with respect, the tests so formulated are neither precise nor exhaustive Tek Chand, J., in that case, has, himself observed that actionable nuisance does not admit of enumeration and any operation which causes injury to health, to property, to comfort, to business or to public moral would be deemed to be a nuisance.
15. Having stated the general principles governing an actionable nuisance, I shall now revert to the facts of the case. Earlier I have referred to the controversy between the parties as to the date when the plaintiff-appellant is said to have started his physician's Consulting Chamber. In the plaint, it has been specifically stated that the said chamber was started in the year 1962. There is no specific denial of this averment in the written-statement filed by the defendant respondent. In his testimoy before the trial court, the plaintiff has reiterated the stands taken by him in his plaint. He has not been cross-examined on that allegation. The defendant-respondent, on the other hand, has made no clear statement as to when the consulting chamber of the plaintiff-appellant was started. It is, therefore evident from the material on record that the chamber of the plaintiff-appellant commenced functioning in the year 1982. The finding of the two courts below that the said chamber was started in 1965 is clearly erroneous and based on non-reading of the pleading of the parties and their evidence. Anyhow even according to the findings of the two courts below the consulting chamber of the plaintiff-appellant started functioning before the machine set up by the defendant-respondent.
16. The two courts below have been largely influenced by the fact that the plaintiff-appellant did not examine any of his patients to prove that any actual damage was caused to them on account of the dust emanating from the machine of the defendant-respondent. They have also referred to the statement of the plaintiff-appellant and have held that the plaintiff admitted that the damage caused to his patients was recorded in his register and the same had not been produced. From this omission on the part of the plaintiff, they have drawn an adverse inference against him and have come to the conclusion that the plaintiff-appellant has failed to establish that any special damage or substantial injury was caused to him.
17. The expression 'special damage' is used in law to indicate a damage caused to a party in contradistinction to damage caused to the public at large. The damage caused to public at large on account of a nuisance is referred in law as a public nuisance. The expression 'public nuisance' has been defined in Section 268 of the I. P. C.: The said section runs as under :--
'268. Public nuisance. -- A person is guilty of a public nuisance, who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.'
18. The offence of public nuisance has been made punishable under Chapter XIV of the said Code. A public nuisance may also be abated by a criminal Court in the exercise of its jurisdiction under Section 133 of the Cr. P. C. 1973. However, there may be cases where a single act may amount to a public nuisance and also give rise to a cause of action to an individual to sue on the basis of private nuisance. For instance, if night soil is heaped by the side of a public highway, it may be a nuisance to the general public and the persons who pass along the said highway. At the same time it may be a private nuisance to a person who lives in a house which adjoins the place where the night soil is collected. All that the law requires is that when an act amounts to public nuisance, an individual can sue in his own right only if he is able to prove special damage to himself i. a, damage which is personal to him as opposed to the damage or inconvenience caused to the public at large or to a section of the public.
The expression 'special damage' was found by the text book writers to be somewhat inaccurate and confusing. In later editions of the text books such as 'Salmond on Torts', the expression which has been used is 'particular damage'. It actually follows from the findings recorded by the two Courts below that the plaintiff had succeeded in establishing damage which was particular to himself. It has been held by the court of appeal that dust emanated from the crushing of bricks was a public hazard and was bound to cause injury to the health of the persons. It has further held that dust from bricks entered in sufficient quantity into the consulting chamber of the plaintiff-appellant so that a thin red coating was visible on the clothes of the persons sitting there. In view of these findings it is difficult to comprehend how it could be said that the plaintiff had failed to prove that special damage was not being caused to him on account of the offending brick grinding machine.
19. Coming to the question of substantial injury, I have already indicated above that every injury is considered to be substantial which a reasonable person considers to be so. In assessing the nature of substantial injury, the test to be applied is again the appraisement made of the injury by a reasonable person belonging to the society. The expression does not take into account the susceptibilities of hyper sensitive person or persons attuned to a dainty mode of living. No other meaning can be assigned or has been assigned to the expression 'substantial injury.' In view of the fact found by the two courts below concurrently, it was impossible to hold that no substantial injury was being caused to the plaintiff-appellant. Causing of actual damage by the act complained of as a nuisance is besides the point. If actual damage or actual injury were to be the criterion a person will have to wait before the injury becomes palpable or demonstrable before instituting a suit or its abatement. My opinion, on this point is fortified by the views of the text book writers and the decided cases. Any act would amount to a private nuisance which can reasonably said to cause injury, discomfort or annoyance to a person.
20. For the reasons stated above, this appeal must succeed. The result is that the appeal is allowed. The decree passed by the two courts below are set aside. The plaintiff's suit is decreed. A permanent injunction is issued against the defendant-respondent restraining him from using Ms brick grinding machine shown by letters Ka, Kha, Ga, Gha in the sketch map given at the foot of the plaint. The plaintiff-appellant shall be entitled to his costs throughout.