K G MUHAMMAD HUSSIAN SAHIB Vs. PBABA SAH

JUDGEMENT

(1.) This is an appeal against the judgment of the Chief Justice restraining the defendants by an injunction from proventing the plaintiffs from building upon their lands. The plaintiffs are Dharmakarthas of the Balasubramaniswami temple in Pudupet situation Narayana Naicken Street. The defendants are interested in a mosque which was separated from the temple by three houses and a road which was about 16 feet broad where it took off from Narayana Naicken Street and was tapering off. It was about 13 feet broad by the time it reached the end of the mosque. The temple originally was in a small building but subsequently the Dharmakarthas acquired three houses which brought the temple property to the street which separated the mosque from the three houses. Having purchased the property the Dharmartkarthas wanted to erect a mantapam after demolishing the three houses which adjoined the original temple. In this they were obstructed by the Muhaminadans who were interested in, the mosque.

(2.) There were Police proceedings and the plaintiffs had to go to Court because they were restrained by the order of a Magistrate from building upon the temple property. The suit was originally tried by Mr. Justice Bakewell who thought the plaintiffs had no cause of action and dismissed it. On appeal it was remanded by Justices Ayling and Odgers and the suit finally came on for trial before the Chief Justice. There was no evidence let in on remand and, so far as the evidence in the case goes, there is no evidence that the building proposed to be erected would necessarily be a nuisance. I the plaint which was filed in the suit all that is said in para. 10 is with a view to meet the essential requirements of the temple and its worshippers, the plaintiffs demolished the house marked B just next to the temple with a view to build on its side a mantaparri to be used for various purposes connected with the temple "I said before there was no evidence to show that this building, if erected, would necessarily amount to a nuisance so as to entitle the Court to prevent the building in anticipation of a nuisance that was likely to be caused. Mr. Narasimha Iyer argues that the very fact that a temple is going to be built necessarily would be a nuisance to the adjacent inhabitants owing to the music and the tom-tom and other accompaniments of a temple. I do not think we can hold in the absence of evidence that the mere fact that a temple is built would justify us in assuming that the temple, if built, would be an actionable nuisance to the neighbours of the locality; much less can we hold that the building of a mantapam annexed to a temple would be such a nuisance. The temple according to the plaintiffs and it is not found against, was an old temple which existed for several years. It was about three houses off this mosque and any tom-tom must have been a nuisance for several years. There is no objection now to the worship which is conducted in the temple but it is complained that the building of that mantapam will create such an actionable wrong as to justify its prevention. As I said before, I do not think we can hold in the absence of any evidence that it will be a nuisance. Several cases were cited by Mr. Narasimha Iyer but they were all cases where there was evidence that there was a nuisance or that the propose building was of such a character as necessarily to amount to a nuisance if completed, but in the case before us those elements are wanting. We think that Justice Coutts-Trotter has correctly defined the rights of the parties. He says in his judgment the Dhurmakarathas are entitled to alter and extend the present temple building marked A in any lawful manner they choose and to erect on the sites marked B, C, D and E any buildings which shall conform to the requirements of the Municipal Law now or hereafter to be in force and that the defendants are not entitled to interfere in any way with such acts of the plaintiffs . This is the sole declaration which the learned Judge says he makes As regards the argument that it may be a nuisance, later on the Judge observes "I am not going to make any declaration touching the user of the building, and when I restrain the Muhammadans from interfering I mean from interfering by physical acts. It is difficult to see how any objection can be taken to the injunction as actually granted by the learned Judge or to the decree in which that injunction is embodied unless we can hold that the mere-budding would be such an act as necessarily to amount to a nuisance as to which there is no evidence whatever. In these circumstances, I do not think there is any reason for interfering with the judgment of the learned Judge who has confined the injunction to legitimate limits so far as the plaintiffs rights are concerned. The appeal, therefore, fails and is dismissed with costs.

(3.) The plaintiffs have filed a memorandum of objections but I do not think there is anything in it. 80 far as the orders of the Magistrate are concerned, the learned Judge was right in saying he could not interfere with those orders. They were passed by the Government and the Magistrate in the exercise of their discretion. 80 far as the costs are concerned I do not see any principal which the Earned Judge violated. The plaintiffs expressly asked in their plaint prayer C to set aside the orders and the learned Judge held that he had no power to do so To that extent the claim failed and the learned Judge was right in giving the defendants some benefit in respect of the reliefs which the plaintiffs asked in-fructuously The memo of objection a tails and is dismissed with costs. Krishnan, J.