A. Varadarajan, J.
1. The defendants are the appellants in S.A. No. 1600 of 1972 which arises out of A.S. No. 58 of 1970 which arose out of O.S. No. 952 of 1967. The plaintiffs are the appellants in S.A.No. 1675 of 1972 which arises out of A.S. No. 37 of 1970 which also arose out of the same suit. Both the appeals have been disposed of by the lower Appellate Court by a common judgment. The parties will be referred to as they are arrayed in S.A. No. 1675 of 1972.
2. The appellants filed the suit for a permanent injunction restraining the respondents from putting up openings in their terrace and allowing the rain water and sullage water to flow adjacent to their wall and for a mandatory injunction directing the respondents to close the openings on the terrace of the respondents' house and remove the pipes and other things put up by them to abstract the rain and sullage water. for a permanent injunction restraining the respondents from erecting and working a motor and pump-set in their premises and causing damage to the appellants' person and property and for a mandatory injunction directing the respondents to remove the motor and pump-set from their terrace.
3. The appellants are the owners of house and ground bearing door No. 395, Bazaar Street, Salem, while respondents are the owners of house and ground bearing door No. 396 of the same street lying west of the appellant's house. According to the appellants the dividing wall marked as N. S. in the plaint plan belongs to them absolutely and in 1967 the respondents Opened two holes on their terrace and allowed rain water and tap water to fall on that wall and thereby caused damage to the wall and the respondents installed a 10 H.P. motor so close to that wall that it caused noise and damage to the wall by vibration and inconvenience to the appellants as their bed-room is close to the place where the motor has been installed. The appellants claimed also damages of Rs. 500 in respect of the said wall which is alleged to have been damaged by some cracks developing in the wall on account of the vibration caused by the electric motor working.
4. The defence was that the wall did not belong exclusively to the appellants but it was a common wall and the holes were in the terrace of the respondents' house since prior to 1924 and the water was being taken from the holes through pipes. The respondents further contended that the electric motor was only 1/2 H.P. motor intended for taking water from the well to the terrace and it was therefor 30 years and that the respondents were enjoying the rights of taking water through the holes and the pipe and down to the drain as also from the well through the electric motor without interruption as of right for over the statutory period and have acquired the rights by prescription. The respondents thus denied that the appellants are entitled to any relief.
5. The trial Court did not go into the question of the ownership of the wall. It did not accept the appellants' case that the openings were made and the pump-set was installed orly in 1967, but found that the holes must have been there for same years, though not for 43 years as alleged by the respondents. The trial Court held that as the respondents claimed the well as their own, they are not entitled to the easement right claimed by their. It found that the pump-set had only a half horse power motor and that the noise emanating from the motor could be heard from the appellant's bed-room and was therefore liable to be removed by the respondents. The trial Court thus granted only a mandatory injunction directing the removal of the pump-set and the closing of the openings in the terrace of the respondents' house and did not grant the relief of permanent injunction although it found that the wall was wet on the eastern face and the western face had been pointed by the respondents and also did not grant the damages of Rs. 500 claimed by the appellants.
6. Both the parties filed appeals before the lower Appellate Court. The lower appellate court in the first instance remanded the suit for fresh disposal on the ground that the appellants should prove their title to the suit wall and the question of easementary right claimed by the respondents must also be gone into. The appellants filed C.M.A No. 300 of 1970 against the order of remand in this Court and the order of remand has been set aside in that C.M.A. which had been allowed by Ramanujam, J. Subsequently, the respondents conceded the appellants' title to the portion of the wall where the holes are found and the lower appellate Court found that the holes must have been made after 1952 and that the respondents have not acquired the easementary right to take water through the holes and the wall of the appellants and that there was noise from the motor pump-set. The lower appellate Court thus confirmed the decree only for mandatory injunctions granted by the trial Court.
7. The appeal by the respondents is against the decree granting mandatory injunction in respect of the holes and the motor and pump-set while the appeal filed by the appellants is against the decree negativing their claim for a permanent injunction and damages of Rs. 500.
8. The Courts below have found that the respondents have no easementary right to take water from their terrace through the openings and the wall of the appellants mainly because no reference has been made to this right in Exhibits A-3 and A-4, Exhibits A-3 and A-4 which are dated 16th February, 1925 and 12th August, 1950 respectively are documents between the predecessors-in-title of both the parties. The predecessors-in-title of the respondents had admitted in Exhibit A-3 that the wall in question belongs exclusively to the predecessors in title of the appellants. The predecessors-in-title of the respondents had been permitted by the predecessors-in-title of the appellants under Exhibit A-3 to raise a small wall on their wall and the predecessor-in-title of the respondents had agreed that that wall should be the property of the predecessors-in-title of the appellants. By Exhibit A-4 in which reference has been made to Exhibit A-3, the predecessors-in-title of the appellants, had permitted the predecessor-in-title of the respondents to put up a top 11/4 feet in width away from the ornamental or projection from the wall in question. No doubt, the right to take water from the terrace of the house now belonging to the respondents through the holes and the pipe which is now found to be imbedded in the said wall is not mentioned in these documents, Exhibits A-3 and A-4. But that will not conclude the matter.
9. The trial Court had appointed a Commissioner for making a local inspection and he has filed a report and a plan which have been marked as Exhibits C-1 and C-2 respectively. The learned District Munsif also made a local inspection. The Commissioner has stated in paragraph 2 of his report thus:
The suit wall, stretching from north to south, is in between the houses of the plaintiffs and the defendants. Adjacent to the said wall, there are two holes one on the north and the other on the south in the first floor of the defendants to provide passage for the water-flow from the terrace of the defendants. The hole on the northern side is 21/2 inches in diameter and the hole on the south is 4 inches in diameter. Each of the holes has a water pipe nearby. Both the holes penetrate 'into the suit wall and the water poured into the said holes, takes its passage through and inside the suit wall, flows to the down floor and passes underneath the floor to come out of the main drain, in front of the defendants' house. * * In my opinion, the said holes and their course of passage throughout should have originated along with the construction of the suit wall. The accurate age of the suit wall and the holes can be determined and established only on the basis of oral and documentary evidence.
The appellants have not filed any objections to this report. The second respondent has stated in his evidence as D.W. 1 that the two holes mentioned in the plaint are in the same place for the last 30 or 35 years and have not been made for the first time only in 1967 and that the rain water passes through those holes and falls into the drain in his house. He has further stated that the water runs down through two pipes imbedded in the wall and that those pipes are not visible from outside. There is no cross-examination of D.W.1 regarding this matter. Therefore it has to be taken as having been established satisfactorily that the water from the terrace of the respondent's house flows through the two holes and then goes down through the pipes embedded in the wall itself and ultimately reaches the drain and also that the holes and the pipes must have originated at the time of the construction of the wall itself. Therefore it was unnecessary for the Courts below to consider the evidence regarding the time when the holes were made divorced from the time when the wall of the appellants was constructed. As stated earlier Exhibits A-3 and A-4 by which the predecessor-in-title of the respondents have conceded the ownership of the wall in the predecessor-in-title of the appellants show that the wall was in existence even in 1925. It is not the case of the appellants that the pipe or pipes which have been found by the commissioner to be imbedded in the wall itself had been inserted at any time latter the construction of the wall, which as already said, was in existence even prior to 1925. Therefore, it would appear clearly that the respondents must have drained the water from the terrace of their house only through these holes and the pipe or pipes imbedded in the wall in question, right from prior to 1925, though it appears from the evidence that the rain water falling On the terrace of the respondent's house must have been previously draining itself through one of the two sky lights found in the respondents' house.
10. The other document Exhibit A-7 of the year 1886, which is a compromise decree to which the predecessors-in-title of both the parties are parties shows that the respondents' house must have two sky lights, one of which provided with glass covering and the other Only with iron bars; and that the water falling on the terrace of the respondents' house should have found its way down through the sky light not having a glass covering. The commissioner has found that a ridge has been erected round the sky light having no glass covering and that a portion of that ridge had been plastered with cement mortar while the ridge has been erected with lime mortar. There is no evidence to show when exactly this ridge was put up or when the repair to the portion of the ridge which is found cemented had been effected. Therefore, I am of the opinion that the Courts below erred in law in ignoring the report of the Commissioner with regard to the flow of water through the holes and pipes imbedded in the wall and the age of the holes and the pipes which in the opinion of the Commissioner must have come into existence when the wall itself was constructed, which opinion has not been challenged by the appellants by filing any objection to that report and in coming to the conclusion that the holes must have come into existence only subsequent in 1952 and that the respondents have not acquired the easement right to take water from the terrace through the holes and the pipe or pipes imbedded in the wall. The Commissioner has found that a portion of the wall on the appellants' side in the ground-floor was wet to an extent of 4 feet in length and 3 feet in breadth and that that portion is the portion of the outer wall against which the passage of water from the holes passes inside, The learned Counsel for the appellants, submits that the respondents may have acquired a prescriptive right to drain their water from the terrace through the holes and the pipe or pipes which have been found to be embedded in the Wall, but they have not acquired any right to wet the wall of the appellants by enjoying any such right for the necessary period. The wall belongs to the appellants and their case that the holes were made by the respondents only in 1967 has been rejected by the Courts below and it is now found that the holes and the pipe or pipes imbedded in the wall of the appellants must have come into existence when the wall itself was constructed prior to 1925. It is not the case of the appellants that the respondents have been allowing more water through the holes and the pipe or pipes than was previously being done or that they have done anything unusual which has resulted in their wall getting wet to a length of 4 feet and breadth of 3 feet. It is not improbable that the wetting of the wall found by the Commissioner to a length of 4 feet and width of 3 feet was due to some damage to the pipe or pipes imbedded in the wall or to the wall itself on account of natural causes. The appellants cannot therefore have any reason to complain about the wetting of the wall on their side to a length of 4 feet and width of 3 feet.
11. The decision in Chheddue Singh v. Kewal : AIR1963All122 . arose out of a suit for a mandatory injunction requiring the defendants to clean and open up a well on their own land so that the plaintiff can take water for the irrigation of his fields. It was found that the well had fallen into decay about 3 years prior to the date of the suit and that the plaintiff did nothing for at least three years. Consequently, it was held that the allegation that the plaintiff needed the water from this well for irrigating his fields was incorrect; and it has been observed that the relief of mandatory injunction is discretionary and cannot be granted if the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the Court. The relief of mandatory injunction has not been granted to the plaintiff in that suit Having regard to the fact that he kept quiet for at least three years after the well had fallen into decay.
12. In Krishna Pillai v. Kailasathammal A.I.R. 1925 Mad. 810. it has been observed:
In all matters of equitable relief, the Court is entitled to take the laches of the party seeking relief into consideration in granting or refusing it. *** I have not the shadow of doubt in my mind that English Courts of equity having before them such a case as this, in which the plaintiff has been sleeping over his rights for 10 or 12 years, would undoubtedly have refused the remedy by way of mandatory injunction.
13. In Punamma v. Venkata Subba Rao : AIR1953Mad456 . Subba Rao, J., as he then was, has observed.
The next point is whether this is a fit case for issuing a mandatory injunction. Section 55, Specific Relief Act says :When, to prevent the breach of an obligation it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
Courts invariably refuse to give this discretionary remedy if the plaintiff acquiesced in the act complained of. Pollock and Mulla in their commentary on the Indian Contract and Specific Relief Acts say at page 790:
The result of the authorities on the subject is that where a person had a legal right it could be destroyed by his acquiescence that is, if he stood by and allowed his neighbours to incur expenditure in doing what he knew would injure his property.
In this case, it is abundantly clear on the facts found that both the plaintiff and the defendant's father, notwithstanding the terms of Exhibit A-1, put up structures encroaching upon the wall presumably with the knowledge of each other. As the defendant's father is dead, it is not possible to say whether the constructions were put up by some other subsequent agreement; but it is not likely that the constructions were put up on the sly. The nature of the constructions put up and the fact that both the parties encroached upon the wall indicate that they must have done it with the consent of each other and the plaintiff allowed the defendant to put up the structures encroaching upon the wall and did not question it for about a quarter of a century. On the facts I must hold that the plaintiff had acquiesced in the construction of the structures and is now not entitled to the discretionary remedy of a mandatory injunction. The two Courts below refused to exercise their discretion in her favour and I do not think I am justified in taking a different view on the facts found.
14, In the present case, the predecessor-in-title of the appellants had not taken any steps to have the holes in the terrace of the respondent's house closed within any reasonable time even though these holes and pipe or pipes embedded in the appellant's wall through which the water from the terrace of the respondents' house flowed down to the drain in the ground right from about 1925 and have allowed the water to flow through the holes and the pipe or pipes embedded in their wall for about 42 years before the date of the suit and they are therefore not entitled to the permanent injunction and mandatory injunction in respect of the holes on account of laches.
15. The evidence of the appellants' father P.W. 1 that the pump-set was installed only in 1967 and that it was a 10 H.P. motor is totally unacceptable. His evidence is unreliable and he is clearly prone to exaggeration. He would say that the motor of the respondents' pumpset is a 10 H.P. motor while the Commissioner has stated in the report that it was a 1/2 H.P. motor. He has stated in his evidence that sometimes water was taken through the pump-set for 24 hours and that the respondents do this on, account of jealousy in order to see that the appellants' building falls down. The Commissioner has found that the overhead tank fixed in the respondents' house could be filled through the motor and pump-set in one hour and ten minutes. Therefore it is not probable that the respondents could have been working the motor and pumpset for 24 hours in a day even on some occasions. D.W. 1 has stated in his evidence that he used to work the motor and pump-set on occasions twice a day. It is quite probable that the respondents are working the motor and pumpset only once or twice a day having regard to the capacity of the overhead tank which takes one hour and ten minutes to fill up through the motor and pump-set.
16. The first respondent had filed O.S. No. 127 of 1952 in the trial Court against P.W. 1, Exhibits B-2 and B-3 which are certified copies of the plaint and decree passed in that suit show that the suit was contested. But P.W. 1 has stated in-his evidence that the first respondent did not file any suit against him in the District Munsif's Court in 1952 and that he did not engage Mr. Sankara Mudaliar, Advocate, Salem to defend him in that suit. He has also denied that a compromise decree was passed in that suit. But Exhibits B-2 and B-3 show that the first respondent had filed O.S. No. 127 of 1952 against P.W. 1 in the trial Court and that P.W. 1 had engaged Mr. Sankara Mudaliar to appear for him in that suit and that a compromise decree was passed in that suit on 5th April, 1952. Therefore, the evidence of P.W. 1 is not Only unreliable but also highly exaggerated.
17. The evidence of D.W. 3, an employee in the Salem-Erode Electricity Distribution Co., shows that 1/2 H.P. motor was working in the respondent's house right from 6th. May, 1962. This evidence of D.W. 3 is based on records of the Electricity Distribution Company. The learned District Judge has found in Para. 22 in his judgment that the evidence would clearly establish that only a 1/2 H.P. motor was installed in the respondents' house. In para. 24 he has found that the pump-set must have been in existence even in 1952 when O.S. No. 127 of 1952 was pending. The learned District Judge, however, has observed in Para. 25, of his judgment that the load card Exhibit B-12 and the evidence of the Line Inspector D.W. 3 would no doubt show that a 1/2 H.P. motor was in the respondents' premises even on 6th March, 1932 but that will not go a step further to show that it was installed at the place it was found now. It is nobody's case that the pump-set had been installed previously at some place and it was shifted from that place to its present place thereafter. Therefore, it has to be found on the evidence of D.W. 1 that the motor and pump-set are in their present place for a number of years, namely, about 35 years as stated by D.W. 1.
18. The learned Commissioner has found 4 lines of cracks in the wall and is of opinion that they could have been caused either because of the disproportionate mixture of the plastering material or from the vibrations from the engine of the motor and pump-set of the respondents. He did not observe any vibration in the wall of the appellants when the motor and pump-set was working during his visit. But the learned District Munsif found that there was some vibration in the wall when the pump-set was worked during his visit. D.W. 1 had admitted that there is a 5 H.P. motor and pump-set even in his own house and that in almost all the houses in the Bazaar Street there are pump-sets.
19. A Bench of the Allahabad High Court in Beharilal v. James Maclean A.I.R. 1924 All. 392. has observed:
Both the Courts below inspected the locality and came to the conclusion that the working of the flour mill in that locality undoubtedly interfered with the comfort of the occupants of the house and disturbed them in carrying on their usual business. What may, however, cause inconvenience to persons with dainty or elegant modes or habits of living may not cause similar inconvenience to persons accustomed to live in the business portion of a town. A discomfort to be actionable should be substantial. It should be substantial not merely with reference to the plaintiff; it must be of such a degree that it would be substantial to any person, occupying the premises of the plaintiff, irrespective of his position in life, age, or state of health * * * * The nature of the interference has to be examined in each case in the light of the circumstances of the place; where the thing complained of actually occurs, and the degree of inconvenience caused must determine the nature of the relief to which the person complaining may be entitled. If a man lives in a town said Lord West bury, it is necessary that he should subject himself to the consequences of these operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much discomfort from the trade carried on in that shop. But where an occupation is carried on by one person in the neighbourhood of another, and his result of that trade or occupation or business is a material or substantial interference with the ordinary physical comfort and convenience of another person, residing in that locality, then very different considerations, unquestionably arise. * * We are prepared to give due weight to the observations made by the Courts below on an examination of the locality and have no doubt that the noise produced, by the engine must be a source of some inconvenience to the persons residing there. * * * Whether anything is a nuisance or not is a question to be determined not merely by an abstract consideration of the thing itself but with reference to its circurrstances; and where? locality is used for the purpose of carrying on a trade or manufacture the fact that such trade or manufacture does exist elsewhere, not far from the place cannot be left out of account. As pointed out by Clarke and Lindsell, the affairs of life in a dense neighbourhood cannot be carried on without mutual sacrifice of comfort and in all actions for discomfort the law must regard the principle of mutual adjustment, and the notion that the degree of discomfort which might sustain an action under some circumstances, must therefore do so under ell circumstances is as untenable as the notion that if the act complained of was done in a convenient time and place, it must, therefore, be justified, whatever was the degree of annoyance that was occasioned thereby.
In Dhannalal v. Chittar Singh : AIR1959MP240 . Chaturvedi, J., observed:
It will be manifest that making unreasonable noises comes in the third category and to be actionable it must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man. In cases of personal discomfort, the standard laid down is the effect on a person of ordinary, not peculiar, sensibilities. The counsel for the appellants rightly urged that in considering the standard of comfort the character of the neighbourhood has to be taken into consideration. The law of private nuisance, in this sense, is undoubtedly elastic, and it was in this connection that Lord Halsbury made the following observations in Colls v. Home and Colonial Stores Ltd. (1904) A.C. 179.
A dweller in town cannot expect to have as pure air, as free from smoke, smell and noise as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell and noise may give a cause of section, but in each of such cases it becomes a question of degree and the question is in each case whether it amounts to a nuisance which will give 3 right of action.
In Struges v. Bridgman (1879) 2 Ch.D. 852Thesiger, L.J., expressed his views thus:.Whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance Judges and Jurists would be justified in finding, and may be trusted to find, that the trade or manufacture, so carried on in that locality is not a private or actionable wrong.
These remarks have been so often quoted by Jurists and Judges that their importance cannot be minimised. It is aptly observed at page 573 of Winfield on 'Tort' (Sixth Edition 1954) that the oft quoted dictum that 'what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey's puts the matter concisely and needs Only the addition that Belgrave Square may in course of time fall to the level of Bermondsey, for that has happened with many other aristocratic quarters of London.
All this, however only means that an arbitrary standard cannot be set up which is applicable to all localities. There is a local standard applicable in each particular district, but, though the local standard may be higher in some districts than in others, the question in each case ultimately reduces itself to the fact of nuisance or no nuisance, having regard to all the surrounding circumstances. But this does not, however, mean that a person living in a district specially devoted to a particular trade cannot complain of any nuisance by noise caused by the carrying on any branch of that trade without carelessness and in a reasonable manner. In Rushmer v. Polsue and Alfieri Ltd. (1906) 1 Ch.234. in a neighbourhood devotee to printing, a printing office was established next door to the plaintiff's residence which rendered sleep impossible. It was. contended that a person living in that locality could not complain of such a noise as the neighbourhood carried on,. and was devoted to printing work. This argument was repelled by the Court of Appe. 1, and in repelling it Cozens Hardy, L.J., especially observed at page 250:
I cannot assent to this argument. A resident in such a neighbourhood must put up with a certain amount of noise ....But whatever the standard of comfort in a particular district may be, I think the addition of a fresh noise caused by the defendant's work may be so substantial as to create a legal nuisance. It does not follow that because I live, say, in the manufacturing part of Sheffield I cannot complain if a steam-hammer is introduced next door, and so worked as to render sleep at night almost impossible although previously to its introduction my house was a reasonably comfortable abode, having regard to the local standard and it would be no answer to say that the steam-hammer is of the most modern approved pattern and is reasonably worked. In short, if a substantial addition is found as a fact in my particular case, it is no answer to say that the neighbourhood is noisy, and that the defendant's machinery is of first class character'.
Similarly, in Bhanwar Lal v. Dhanraj . Kan Singh, J., observed thus.
The term 'nuisance' is incapable of an exact definition as observed in Winfield on Tort (VI Edition) at page 536. But its concept is well understood.
As the Author has observed it may be described as ' unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it.' It is a common wrong having a long history. There must be interference with the use or enjoyment of land, or of some right over or in connection with it, Causing damage to the plaintiff. The forms of this are innumerable. Noise, smells, pollution of air or water are most usual instances, but there are many others. The two main heads are injury to property and interference with personal comfort. The escape of fumes, which kill vegetation and cattle, is an illustration of the first, and excessive tolling of church bells of the second. But whatever be the type, it does not follow that any harm constitutes a nuisance. The whole law on the subject really represents a balancing of conflicting interests. Some noise, some smell, some vibration, everyone must endure in any modern town, otherwise modern life there would be impossible. It is repeatedly said in nuisance cases that the rule is sic utero tuo ut alienum non laedas, but the maxim is not very informative. If it means that no man is ever allowed to use his property so as to injure another it is palpably false. If it means that a man in using his property may injure his neighbour but not if he does so unlawfully, it is not worth stating. In fact, the law repeatedly recognises that a man may use his own so as to injure another without committing a nuisance. It is only if such use is unreasonable that it becomes unlawful. The homely phrases, 'give and take' 'live and let live ' are much nearer the truth than the Latim maxim. A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with.
Where the interference is with personal comfort, it is not necessary in order to establish a nuisance that any injury to health should be shown. It is enough that there is material interference with the physical comfort of human existence reckoned 'not merely according to elegant or dainty modes and habits of living but according to plain and sober and simple notions among the English people'. The author proceeds to say that that one of the chief tests is reasonableness--'what is reasonable according to the ordinary usages of mankind in society or more correctly in a particular society' and it is important to distinguish this term in the law of nuisance from its use elsewhere in the law of tort, especially in negligence. Reasonableness plays an important part in determining whether or not there has been a nuisance. Just as in England Courts deal with a case according to English people's habits of living, in India we have to go by the habits of Indian people.
20. The parties are residents of Bazaar Street in Salem town, a busy locality and it is admitted by P.W. 1 that almost all houses in that street have motor and pump-sets for lifting water from the wells for domestic purposes and that a 5 H.P. motor was installed even in the house of the appellants. People living in such a locality have to put up with some inconvenience caused by the use of motor and pumpsets intstalled in the neighbouring houses. Possibly there is some such inconvenience even to the neighbours of the appellants on account of the appellants themselves working at 5 H.P. motor in their house for lifting water from the well. The parties who are placed in such circumstances should therefore put up with some inconvenience. There is no evidence to show that the inconvenience caused to the appellants by the respondents using their motor and pump-set is unusual or of such magnitude that it causes positive nuisance of great magnitude to the appellants and damage to their property. The appellants, therefore, are not entitled, to the permanent injunction and mandatory injunction in respect of the motor and pump-set of the respondents.
21. But I find that the motor and pump-set have been installed on the terrace of the first floor of the respondents' house and are fixed to the rafters resting on the wall in question. This is likely to cause a little more noise and vibration than would be the case if the motor and pump-set are firmly fixed to a bed erected on the side of the wall or on the land immediately adjoining the well. The learned Counsel for the respondents has no objection to a direction being given in these second appeals to the respondents for removing the motor and the pump-set from the place where they are now fixed and fixing the same in the ground floor of their property about 11/2 feet away from the wall in question belonging to the appellants. The respondents will do so in three months.
22. The cracks in the wall have not been proved to be due to the working of the motor and pump-set. The appellants are therefore not entitled to damages on that account and there is no reason to disagree with the Courts below in this regard.
23. The learned Counsel for the appellants submitted that in so far as the respondents had claimed common ownership in the wall in question, they would not be entitled to adduce evidence to prove that they have an easement right in respect of that wall. The question does not arise for consideration having regard to the fact that the respondents have admitted before the lower appellate Court that the wall belongs exclusively to the appellants.
24. Subject to the above directions, S.A. No. 1600 of 1972 is allowed and S.A. No. 1675 of 1972 is dismissed, but under the circumstances, without costs throughout. No leave.