RAM PRASAD JAIN Vs. GOPI RAM

JUDGEMENT

(1.) THE plaintiff and the defendant in the suit out of which this second appeal arises are the owners of two contiguous houses situated in the town of Samastipur. THE house of the plaintiff has been in existence for some considerable time. THE house of the defendant, on the other hand, has been constructed recently. THE plaintiff asserts that a latrine in the house of the defendant is a nuisance. THE trial Court dismissed the suit, but on appeal the learned Subordinate Judge issued a mandatory injunction requiring the defendant either to make certain alterations in the latrine or to build another latrine in some other part of his premises. THE learned Subordinate Judge also awarded damages to the plaintiff. THE plaintiff is not in occupation of his house, the house having been let out to two sets of tenants, one of whom occupy the ground-floor and the other of whom occupy the upper-storey. THE point taken by Mr. G.P. Das, for the appellant, is that the plaintiffs have no cause of action. It is clear, Mr. G.P. Das says, that assuming that a bad smell comes from this latrine, it does not offend the noses of the plaintiffs although it may offend the noses of their tenants. Mr. G.P. Das relies on Alwar Chetty V/s. Madras Electric Supply Corporation Ltd. A.I.R. 1932 Mad. 779, in which a number of English decisions bearing on the point have been considered. An owner of property who is not himself in occupation of it cannot maintain a suit for the removal of a nuisance unless, the nuisance is such as to have caused actual damage to his property, as, for instance, where machinery is said to be a nuisance and the vibrations caused by it have produced cracks in the building of the plaintiff, or, if the nuisance is suffered to continue, the person causing it may acquire by prescription a right to continue it. This case, it is I think clear, does not come within either of the exceptions. One of the plaintiffs in his evidence said that a tenant of his who had been occupying in lower storey had had to leave in consequence of the smell coming from the privy. This would seem to have been untrue as immediately afterwards, he said that this tenant was a Brahmin and was an invalid, implying, presumably, that that was the reason why he had not come to give evidence on his behalf. Even, however, if one of the tenants of the plaintiff had relinquished his lease, it is open to doubt whether that would have given the plaintiff a cause of action; see the observation of Jessel, M.R. in Jones V/s. Chappel. (1875) L.R. 20. Mr. K.N. Varma, for the respondents, cited the decisions in (88) 12 Bom. 634 Sayed Jafar Saheb V/s. Kadir Rahiman and Rama Rao V/s. Martha Sequeria (19) 52 I.C. 921:A.I.R. 1920 Mad. 808. THEse decisions are not, however, in point. All that was laid down there was that even when latrine has been constructed with the sanction of a municipality it may constitute a nuisance. THE appeal must, in my opinion, be allowed, and the suit must be dismissed with costs throughout.