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Abdul Hakim and anr. Vs. Ahmad Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberS.A. No. 332 of 1974
Judge
Reported inAIR1985MP88
ActsSpecific Relief Act, 1963 - Sections 38
AppellantAbdul Hakim and anr.
RespondentAhmad Khan
Appellant AdvocateN.K. Jain, Adv.
Respondent AdvocateV.K. Sapre, Adv.
DispositionAppeal dismissed
Cases ReferredIn Jugal Kishore v. Rain Saran Das
Excerpt:
.....quasi-easement or other right used or enjoyed in connection with land, when it is a private nuisance. ..22. the learned authors illustrate the nuisance of the third kind as follows :nuisances of a third kind, causing interference with the enjoyment of land are, creating stenches by the carrying on of an offensive manufacture or otherwise. he has also clearly admitted that -it is obvious -stench comes from the latrine which has a floor sloping towards the lane. 6 ahmed khan, and independent witnesses like chhotekhan (p. 32. i am therefore satisfied that there is much evidence on record on which the learned addl. district judge could -for good reasons -base his finding that the defendants' user of the latrine constituted nuisance to the plaintiff in so far as the use of the kitchen..........lower courts have concurrently held that though the respondent is not the exclusive owner of the suit lane and is neither in exclusive possession thereof, yet his house, which includes a room on the southern wing thereof had been in existence before the appellants constructed disputed latrine in 1965. the two courts have further held that the respondent's aforementioned room, which has a door and a window opening into the suit lane, and separated by a 3' wide suit lane from the appellants' latrine had all along been in the respondent's user as a kitchen. it has alsobeen held by the trial court that the aforementioned window is about 4' above the ground-floor of the suit lane.14. the two courts have further held that the appellants' user of the suit latrine (admittedly since 5-7-67).....
Judgment:

K.K. Verma, J.

1. This is defendants' appeal from a reversing decree dt. 2-9-1974 passed by the Additional District Judge, Guna, in Civil Appeal No. 86 of 1979 arising out of the decree dt. 11-7-69 of the Civil Judge Class II, Mungaoli, whereby the respondent's suit (C.S. No. 47-A/66 instituted on 4-7-66) for a mandatory injunction for closure of the 'nikas', 'mori' and 'Khidki' of the appellants newly constructed latrine was dismissed.

2. The following facts were admitted in the written statement.

There is a 3' X 31/2' wide lane running east-west between the respondent's house to its north and the appellants' house to the south of the said lane at Athaipura Ward No. 7 in the town of Mungaoli. With the sanction of the Municipal Committee in 1964 the appellants opened a door in their house in the northern wing which is situated adjacent to, and along, the aforementioned lane. In 1965 the appellants applied to the Municipal Committee Mungaoli for sanction to construct a latrine in the northern wing of their house. (The respondent avers that he was then away from Mungaoli). The respondent's wife's objections to the proposed construction of the latrine were overruled. Then appellants constructed a latrine and appurtenant 'khidki' and 'mori' in the northern wing of their house and dug along a kucchi nali for receiving watery refuge -- discharge from the 'mori' of the latrine in June 1965.

3. The respondent filed the suit in question on 4-7-66 alleging that the appellants had not started using the newly constructed latrine.

4. The respondent obtained an ex parte temporary injunction against the appellants on 4-7-66. It was confirmed on 10-11-1966. The appellants' appeal against the order dt. 10-11-66 was allowed by the Additional District Judge, Guna in C.M.A. No. 1/67 on 30-6-67.

5. The respondent's application dt. 12-1-68 for leave to amend the plaint was allowed on 10-2-68. The amendment was to the effect that the appellants started user of the latrine on 5-7-67 a fact not controverted by theappellants in their consequential amendment of the plaint.

6. The respondent's suit was based on the following averments. He is the owner of the lane in question, and that the appellants encroached upon a part of his lane in constructing the latrine.

7. The respondent had initially contended that the proposed user of the appellants' latrine was likely to be a nuisance to the respondent.

8. By virtue of the plaint-amendment --(referred to at para 5 above) the respondent averred that the appellant's user of the latrine from 5-7-67 resulted in foul smell (emitting from the latrine and the 'nali' dug along the lane) invading his kitchen which is immediately opposite the latrine, and his shop, which is to the west of the kitchen. All this has not only adversely affected the respondent's enjoyment of his property but also has proved a hazard to his health and the health of his family members. In short, the appellants are guilty of nuisance.

9. The appellants challenged the correctness of the respondent's averments (set out in the paras 7 and 8 above).

10. The parties produced documentary evidence and examined witnesses. *

11. The learned Civil Judge dismissed the suit after reaching the conclusion that the appellants user of their latrine did not amount to their committing any nuisance.

12. The learned Additional District Judge, Gwalior reversed the aforementioned conclusion and passed a decree in respondent's favour in the following terms :

^^okn i= ds pj.k 2 esa of.kZr xyh esa j[ks x,izfroknhx.k ds laMkl dk fudkl] eksjh ,oa f[kMdh cUn djus dh fu'ks/kkKk nhtkrh gS**A

13. The lower courts have concurrently held that though the respondent is not the exclusive owner of the suit lane and is neither in exclusive possession thereof, yet his house, which includes a room on the Southern wing thereof had been in existence before the appellants constructed disputed latrine in 1965. The two courts have further held that the respondent's aforementioned room, which has a door and a window opening into the suit lane, and separated by a 3' wide suit lane from the appellants' latrine had all along been in the respondent's user as a kitchen. It has alsobeen held by the trial Court that the aforementioned window is about 4' above the ground-floor of the suit lane.

14. The two Courts have further held that the appellants' user of the suit latrine (admittedly since 5-7-67) involves manual scavenging. The scavenger, Kanhaiyalal D.W. 1, conies up the lane to the latrine-apperture (Sandas) lifts its metal flap, collects the night-soil from the floor of the 'sandas', dumps it into a basket and carries it away.

15. It has also been held by the two Courts that a 'kachchi' (uncovered) 'nali' dug by the appellants along the suit lane towards West, but hugging the Southern wall of their house, receives the flow of water discharged from the out-let of the latrine's 'mori'.

16. I have gone through the evidence of Chhotekhan P.W. 1, Devilal P.W. 2, Laxminarayan P.W. 3, Amarlal P.W. 4, Mardan Ali P.W. 5 and plaintiff Ahmed Khan. Then I scanned the evidence of appellants' scavanger Kanhaiyalal D.W. 1, their neighbour Mustat'a Khan D.W. 2, Abdul Khalil D.W. 3, defendant No. 2 Abdul Jalil D.W. 4 and Jasim Haider D.W. 5.1 have done all this in order to satisfy myself, and I am satisfied that there is in fact evidence which can sustain the aforementioned findings. In fact, the appellants' learned counsel has not challenged the aforementioned findings. All that he tried to show was that there is no nuisance. In the alternative, it was urged that nuisance, if any, was not of such a nature as to justify issuance of a permanent injunction for closure of the latrine.

17. The learned counsel relied on Section 38 of the Specific Relief Act. He also relied on Cawa Shah Bomanji v. Prafulla Nath; AIR 1941 Nag 364, Dhanya Kumar Jain v. Rajendra Prasad, AIR 1978 All 469 and Gouricharan v. Rasiklal 1965 Jab LJ (SN) 22.

18. On the other hand, the respondent's learned counsel has relied on Jugal Kishore v. Ram Saran Das AIR 1943 Lah 306.

19. The respondent's case was found established by the learned Additional District Judge in the following terms : --

^^izfroknh ds laMkl dh nqxZU/k QSyrh jgrh gS 'kkSpky;dh nqxZU/k ds jgrs gq, Hkkstu cukuk ,oa [kkuk ,d cgqr gh vlguh; ,oa d'Vnk;df;k gS bl izdkj ds nwf'kr okrkoj.k esa [kkuk cukuk vkSj [kkuk ilan ughadqN gksxk gj ,oa O;fDr 'kq) ,oa ifo= okrkoj.k esa dksbZ Hkh O;fDr [kkuk cukukvkSj Hkkstu djuk pkgrk gSA ysfdu izfroknhx.k us oknh ds jlksbZ?kj ds ikl 'kkSpky;cukdj ds oknh dk [kkuk cukuk ,oa [kkuk dk'Vnk;d cuk fn;k gSA mijksDr

dkj.kks ls ;g izekf.kr ik;k tkrk gS fdizfroknhx.k dk mijksDr R; ,d izdkj dk dVd gS tks gkfudkjd ,oa d'Vizn gSAizfroknhx.k ds mijksDr `R; ds dkj.k oknhx.k LosPNkuqlkj vius edku dk mi;ksx omiHkksx djus ls oafpr gks x;s gSA oknh dk mijksDr mi;ksx o miHkksx vlqfo/kkiw.kZgks x;k gSA mijksDr dkj.kksa ls oknh izfroknhx.k ds 'kkSpky; dk fudkl eksjh vkSjf[kMdh dks cUn djkus ds vf/kdkjh gSA esjs mijksDr er dk leFkZu U;k; mnkgj.k ,-vkb- vkj- O . ykgksj O' tky fd'kksj cuke jke 'kj.k ,oaU;k; mnkgj.k .'' tcyiqj yk tjuy laf{kIr uksV 22 xkSjhpj.k cuke jfldyky ls gksrk gSA**

20. Now the first point for determination is whether the latrine's user is a nuisance to the respondent. Clerk-Lindsell in their book of Torts (1954 Edi) defined nuisance at page 560 in Note 968 as follows : --

'Nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of(a) a right belonging to him as a member of the public, when it is a public nuisance, or(b) his ownership or occupation of land or of same easement, quasi-easement or other right used or enjoyed in connection with land, when it is a private nuisance.'

21. The learned authors stated in Note 970 (page 561) as follows :-

'Private nuisance -- The acts which constitute public nuisance or all of them unlawful acts. In private nuisance, on the other hand, the acts constituting the nuisance are not necessarily or usually unlawful. A private nuisance may be and usually is caused by the person doing on his own land something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his act are not confined to his own land but extends to the land of his neighbour by (1) causing an encroachment of his neighbours' land, when it closely resembles trespass (2) causing physical damage to his neighbours' land or building or works or vegitation upon it, or (3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.......'

22. The learned authors illustrate the nuisance of the third kind as follows : --

'Nuisances of a third kind, causing interference with the enjoyment of land are, creating stenches by the carrying on of an offensive manufacture or otherwise.........'

23. It is clear that the nuisance alleged by the respondent comes within the definition of a private nuisance, and would be a nuisance of the third kind mentioned above.

24. The teamed authors have laid down the following guidelines. In their Note 972 (at page 563) they say : --

'In nuisance of the third kind the personal inconvenience and interference with one's enjoyment one's quiet, one's personal freedom, anything that discomposes or injuriously affects the nuisnace or the nerves, 'there is no absolute standard to be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance.'

25. The learned authors further state at page 564 as follows : --

'.......In determining the question whethera nuisance has been caused, a just balance must be struck between the right of the defendant to use his property for his own lawful enjoyment and the right of the plaintiff to the undisturbed enjoyment of his property.'

26. It will be therefore necessary to see whether the evidence afforded any basis for the conclusion of the learned Addl. District Judge that the plaintiff had established his case of nuisance. I have already referred to the facts found proved -- and now beyond challenge -- at paras 13, 14 and 15 of my judgment. With the background by the aforementioned facts, and the admitted facts (at para 2 of my judgment) I will first refer to the evidence adduced by the defendants (appellants).

27. Defendant 2 Abdul Jalil (D.W. 4) admits at para 9 of his testimony that ten inmates of his household ordinarily used the suit latrine. It is, therefore, highly probable that the frequency of the latrine's user on any given day must have been considerable.

28. D.W. 1 Kanhaiyalal sweeper deposes that he cleans,the defendants' latrine once a day between 8 and 9 A.M. He has also clearly admitted that -- it is obvious -- stench comes from the latrine which has a floor sloping towards the lane. He has also admitted that he places a basket (used for collecting nightsoil removed from the latrine) outside the sandas during the two or three minutes occupied by his cleaning of the latrine.

29. D.W. 4 Abdul JaW admits that generally the water used in taking 'aab-dast' flows out of the 'mori' of the latrine and driesup in the lane itself, and reaches' the public drain only in the rainy season.

30. Hence the version of P.W. 6 Ahmed Khan, and independent witnesses like Chhotekhan (P.W. 1) and Devilal (P.W. 2), and P.W. 5 Mardanali, who is on dining terms with the plaintiff, to the effect that stench coming from the latrine and the water discharged from the outlet of the latrine's 'mori' invades the plaintiffs kitchen through its window could legitimately and reasonably form a basis for the conclusion reached by the learned Additional District Judge.

31. Besides, P.W. 6 Ahmed Khan has stated that the latrine's stench invading his kitchen decomposes and nauseates him and his family members. He has said that the stench has forced them to eat away from the kitchen. He says that he eats in his shop while the rest of the household eat in the adjoining room. He says that he has no other kitchen in his house. His evidence is supported by the independent testimony of P.W. 1 Chhotekhan (at paras 1, 2 & 8) and by P.W. 2 Devilal (at paras 3, 6 and 12) and by P.W. 5 Mardanali (at paras 1, 2, 7 and 13). In fact Mardanali (P.W. 5) has stated that he had seen the plaintiff's wife cooking in the aforementioned kitchen after covering her face with a piece of cloth.

32. I am therefore satisfied that there is much evidence on record on which the learned Addl. District Judge could -- for good reasons -- base his finding that the defendants' user of the latrine constituted nuisance to the plaintiff in so far as the use of the kitchen for cooking purposes had been made very nauseating and inconvenient to the cook and resulted in the abandonment of the kitchen by the plaintiff and his family members as a place for taking food.

33. The existence of a country latrine at a distance of three feet only from the kitchen is a telling circumstance which lends support to the plaintiffs case in a way that almost clinches the issue on the point of nuisance in his favour.

34. I will now examine the case law cited by the parties. The facts in Cawashah Bomanji v. PrafullaNath; AIR 1941 Nag 364 were these. Respondent 1, P. N. Rudra purchased a plot, of land in Circle No. 19A known as Civil Station on 27-5-1937, the plot was adjacent to the house of the appellants. Rudra purchased somemore land from one Chorghade on the side remote from the appellants' land. On 22nd Mar. 1937 he applied to the Civil Station Sub-Committee for permission to build a house on the site, the Sub-Committee sanctioned the erection of a building subject to certain conditions in respect of the outhouses of the latrine. The appellant 1 disputed the sanction and took the matter to the Municipal Committee, Nagpur which refused to interfere. The respondent 1 commenced construction of his house.

35. The appellants instituted the suit alleging that under the building bye-laws in force no permission to erect a building could lawfully be given by the Civil Station Sub-Committee unless (1) the area of the plot built upon is not less than an acre, (2) the bungalow is centrally situated; (3) that it should be at least 80' away from the main building on the adjoining land, and (4) the facing of the building, its conservancy arrangements and the position of the outhouses are in conformity with the existing arrangement of the buildings in that part of the Civil Station. It was averred that respondent No. 1 contravened the bye-laws with the consequence that there was a likelihood of congestion and consequent insanitation and difficulty of drainage and diminution of light and ventilation and that the plaintiffs being in close proximity were affected by respondent 1's violation of the bye-laws. It was urged that the sanction granted by the Civil Station Sub-Committee was ultra vires of that body.

36. The plaintiffs succeeded in the trial Court but failed in the lower appellate Court which turned down all their pleas. It also found that the building was not calculated to cause any discomfort, inconvenience or injury to the plaintiffs or their property. One of the points canvassed before the High Court was whether the building if allowed to be constructed according to the sanction was likely to cause a nuisance to the plaintiffs. The High Court held that on the facts of the case they were not convinced that there was likelihood of material interference with the health or comfort of the appellants so as to furnish them with a cause of action. Hence the ruling in question does not help the case of the appellants before me, which is clearly distinguishable on facts.

37. In Dhanya Kumar Jain v. RajendraPrasad; AIR 1978 All 469 the plaintiff had sued for closing down certain water spouts and ventilators in the defendant's wall The plaintiff succeeded in two Courts. Before the High Court the only question raised was whether the ventilators could be closed. The High Court held that merely because the ventilators overlooked the plaintiffs 'chabutra' it gave no right to the plaintiff to have them closed. It was observed that the plaintiff had no right of privacy or any other right to prevent people from overlooking on the 'chabutra' which is open to the sky. It is clear that the ruling is clearly distinguishable on facts.

38. On the other hand, Gouricharan v. Rasiklal; 1965 Jab LJ (SN) 22 helps the respondent, and not the appellants. There it was held that it would be anomalous to say that a latrine constructed in Indian style which is not a flush latrine and where sanitary fittings are not used would not cause nuisance to the immediate neighbour at a distance of about 13 feet from the present drawing room and at a distance of 7 feet from the proposed drawing room of the plaintiff. On these facts the High Court permanently restrained the defendant from constructing the latrine near his drawing room. In fact in the case now before me the plaintiff Ahmedkhan's kitchen is only 3' away from the latrine of defendants-appellants. Thus the ruling favours grant of injunction in the present case also.

39. In Jugal Kishore v. Rain Saran Das; AIR 1943 Lah 306 the plaintiffs grievance was that the defendant's newly constructed 'sandas1 and the 'moris' were a nuisance. There the evidence was that the door of the shop of the plaintiff opened into a narrow lane, which was being used for removing the nightsoil from the 'sandas' of the defendants. The High Court held :-

'If, therefore, filth from this 'sandas' can only be removed by this narrow lane, the 'sandas' itself must be held to be a nuisance. The question is not whether the 'sandas' itself emits any foul smell when it is shut but whether the 'sandas' can be used as such without causing material discomfort to the occupant of the shop. The 'sandas' must be cleaned once or twice a day and if the sweeper with stinking filth must pass by the shop of the plaintiff, the 'sandas' must be held to amount to a nuisance.'

The High Court accordingly held the newlybuilt 'sandas' to be a nuisance. The observations made in this ruling apply with greater force to the case before me in which -- it must be repeated again -- the latrine is only 3' away from the plaintiffs kitchen-window.

40. I therefore hold that the defendants' user of the latrine constitutes nuisance to the plaintiff.

41. The next point for determination is whether the nuisance is of such a kind as to justify issue of an injunction which is going to render the defendants' latrine useless to the defendants.

42-43. The plaintiff had objected to the construction of the latrine and took up the matter not only before the Municipal Committee Mungaoli but also in appeal from the Municipal Committee's order sanctioning the construction of the latrine to the Collector Guna, before whom he failed (vide Ex. D-2). He then promptly filed the suit. It may be mentioned that the Municipal Committee had allowed the plaintiffs objection -- after the construction of the latrine -- to the extent of ordering closing down of two ventilators in the latrine. This is clear from the admission of Abdul Jalil (D.W.4) at para 11 of his deposition. It is therefore evident that the defendants who have admittedly another latrine for their use -- reference may be made to paragraph of the deposition of D.W. 1 Kanhaiyalal and para 6 of the deposition of D.W. 4 Abdul Jalil -- had persisted in constructing another latrine with full knowledge that the proposed latrine was being opposed by the plaintiff on the ground of apprehended nuisance.

44. It is also pertinent that the invasion of the stench from the latrine into the plaintiffs kitchen -- a continuous or recurrent unpleasant experience every day -- cannot be regarded as a slight matter because it adversely affects the plaintiffs enjoyment of his kitchen for the cooking and dining purposes. I, therefore, hold that the lower appellate Court was right in decreeing the respondent's suit.

45. I; therefore, dismiss the defendants' appeal and confirm the first appellate Court's decree, as set out at para 12 of this judgment. The costs in the trial Court and in the appellateCourt shall be borne as directed by the first appellate Court. The appellants shall bear the respondent's costs of this second' appeal and bear their own. Counsel's fee Rs. 100/-.

46. A decree be drawn up annexing a copy of the plaint map to the decree as part thereof.


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