NAWAB HUSAIN Vs. MANGAL SEN AND ANOTHER

JUDGEMENT

(1.) This is plaintiff's appeal arising out of a suit, filed by him, for permanent injunction restraining the defendants-respondents from continuing their coal depot, in their house no. 18, situated in Mohalla Garhi Gorwan in the town of Muzaffarnagar. It was alleged that the plaintiff lived with his family in his house no. 38, situated in Mohalla Babar Kassaban at a distance of about 15 ft. towards the north of the house of tHe defendants, that earlier the defendants were using their house for residential purposes, but, about 8 or 10 days before the filing of the suit they opened a coal depot. In their house and on account of the coal depot, coal particles enter his house and cause great inconvenience to him and to his family members. Coal dust also causes damage to his clothes and food and that amounted to nuisance, it was alleged that particularly at the time of the unloading of the trucks which was made by the defendants in front of his house coal dust and particles of coal spread all around and it becomes difficult even to breathe. The plaintiff also claimed right of easement in respect of fresh air and alleged that because of the defendants coal depot, the air was polluted. Since the defendants did not remove their coal depot, despite repeated protests, the plaintiff filed this suit.

(2.) The defence was that the coal depot had been in existence since two years before the filing of the suit and that unloading of the coal from trucks and other vehicles used to be done only after every two or three months. It was denied that the plaintiff had any right of easement as claimed and it was also denied that the plaintiff lived in the aforesaid house. It was, further, pleaded that the road in front of parties houses is about 30 ft. in width and no inconvenience was being caused to the plaintiff because of the coal depot and dust and coal particles do not enter the plaintiffs house.

(3.) The trial Court framed a number of issues and held that the plaintiff lived with his family in house no. 38, that he had no right of easement as claimed, that the defendants had been unloading coal from trucks and other vehicles in front of plaintiffs house and on that account coal dust enters his house and spoils his meals, clothes and walls and that amounts to nuisance. The trial Court hence decreed the suit partly, restraining the defendants from loading and unloading coal in front of the plaintiffs house. Parties were directed to bear their own costs. From that judgment and decree the plaintiff filed an appeal while the defendant filed cross-objection claiming that the suit should have been dismissed in entirety.