BAI BHICAIJI Vs. PEROJSHAW JIVANJI KERAWALLA

JUDGEMENT

(1.) This was a claim by the plaintiffs for injunction and damages, or damages in the alternative, against the defendant, Kerawalla, on account of the nuisance alleged to be caused to the plaintiffs by the stables of the defendant. The plaintiffs are husband and wife, the lady owning the tenement building which is alleged to suffer from the nuisance. This house was built in the year 1907 and Mrs. Bhicaiji Kumana, the first plaintiff, has since settled it on trust. In the meantime, she and her husband, with their family, resided up to a recent period on what are called the second and third floors of it. The suit, therefore, is brought by the plaintiffs in their double capacity, that is to say, as trustees interested in the reversion and as actual residents. The house consists of four floors. The ground floor is let to tenants of the humbler classes. The first floor used to be let to Mr. Katrak at a rent of Rs. 80 a month. The second and third floors, as I have said, were occupied by the plaintiffs and their family. The defendant obtained a lease of the adjoining open land, on which formerly bullocks used to be tethered and bullock carts kept. The evidence is that there was a shed and may be a shop or two on that otherwise vacant land before the defendant built his stables there. These stables were completed in or about October 1913. The stables cover 550 square yards and accommodate seventy-five horses. There are also half as many hack carriages which have to stand about the stables and are washed and cleaned on the spot reserved for that purpose. The distance roughly between the defendant s stables and the plaintiffs dwelling-house may be said to be anything between twenty and thirty-five feet. Various points in respect of which complaint is made, as, for example, the washing stand, are considerably more distant, But it is quite unnecessary to go into minute details of that kind.

(2.) Speaking generally, the case opens on the admitted facts that this large stable has been brought into existence within a very short distance, indeed, of the plaintiffs dwelling-house. The plaintiffs dwelling-house runs north and south and faces east and west. The stables run along the east frontage of the plaintiffs house.

(3.) The defendant s first line of defence was that the nuisance complained of had been acquired by him as an easement. This rests upon such evidence as has been led to show that before the erection of the stables the land on which they now stand was used for tethering bullocks and allowing bullock carts to stand when not in use. The evidence shows that while so used the land was probably in an extremely insanitary condition, and, doubtless, residents in the vicinity might have been expected to suffer at least as much inconvenience from the smells arising from the uses to which the land was put then as from the smells arising from the uses to which it is now put. Reference was made to the case of Crump v. Lambert (1867) L.R. 3 Eq. 409 in support of the proposition that a right to cause a nuisance might be acquired as an easement. This proposition of law has been affirmed in the Bombay High Court in the case of Kashinath v. Narayan (1897) I.L.R. 22 Bom. 831. If, however, the defence is to rest on easement, it must be governed by the Indian Easement Act and the provisions of Section 15 of that Act are fatal to it. Whatever easement may have been acquired by the owners of this land to cause a nuisance to the adjacent servient tenements by the tethering of bullocks, etc., on the vacant land admittedly came to an end in the year 1908. That is considerably more than two years before the nuisance now complained of came into existence and before the date of the suit. Every period of twenty years giving a right of easement under the Indian Easement Act must end within two years of suit. Moreover, the nuisances complained of being of a totally different character, that defence could not, on general principle, I think, quite apartfrom the special objection I have mentioned, be sustained.