RUDRI PRASAD Vs. JAGAT NARAIN

JUDGEMENT

(1.) This is defendant's second appeal arising out of a suit filed by the plaintiff respondent for a permanent injunction to restrain the defendant appellant from running the flour mill and other machinery in his House No, 129 situate in mohalla Khatriyan in Kashipur town. The trial Court decreed the suit by judgment dated 1-8-1972 in part and issued an in junction restraining the appellant from running the flour mill from 6 P. M. in the evening to 9 A. M. in the morning. Against the said judgment the plaintiff appellant filed an appeal before the lower appellate Court. The lower appellate Court after examining the evidence on record came to the conclusion that the running of the flour mill by the appellant would be a nuisance not only in the night but in the day as well. In view of this finding tile appeal was allowed and the entire suit was decreed by the lower appellate Court by its judgment dated 17-11-1972. Against the said judgment the defendant has filed the present second appeal. Learned counsel for the appellant has urged that the lower appellate Court could not have granted an injunction restraining the defendant-appellant from running the flour mill during the day as no substantial nuisance has been proved. I do not agree with this submission. The lower appellate Court has examined the oral evidence of the parties and thereafter came to a conclusion that the running of the flour mill by the defendant appellant would be a nuisance not only in the night but also in the day as well. This finding is a finding of fact. In Radhey Shiam v. Cur Prasad (1 ). T. S. Misra, J. has held that whether the running of certain machines amounts to a nuisance or not is a question of fact which cannot be interfered with in second appeal. The prin ciple laid down in Radhey Shiam's case (Supra) fully applies to the instant case. In the instant case the lower appellate Court has found that the running of the flour mill during the day as well will cause substantial discomfort and inconvenience in the living of the plaintiff-respondent whose house is very near to that of the appellant. This finding is clearly a finding of fact and cannot be interfered with in second appeal. In the result I do not find any force in this appeal. It is accordingly dismissed but in the circumstances parties are directed to bear their own costs. " .