DATTATRAYA Vs. GOPISA

JUDGEMENT

(1.) THIS second appeal by the plaintiffs arises out of a suit filed by them for a permanent injunction against the defendant on the ground that the latter opened a door abutting on plaintiffs ota and constructed a cess-pool and latrine on Municipal land near their house. The parties are neighbours. The plaintiffs' case is that the defendant has committed an actionable wrong in constructing the cess-pool and latrine which causes nuisance to them. They therefore want that the defendant be ordered not to have any building, door or latrine or cess-pool on the land A B C in dispute.

(2.) THE defence was that the ota belonged to the defendant and that the latrine and cess-pool do not cause any nuisance to plaintiffs. The trial Court held that the ota belonged to plaintiffs and that the latrine and cess-pool do cause nuisance to plaintiffs. It accordingly passed a decree for a permanent injunction. The defendant therefore appealed to the Additional District Judge's Court. The learned Additional District Judge differed from the Court and held that plaintiffs failed to prove that the ota belonged to them. As regards the site on which the latrine and the cesspool stand it came to the conclusion that the question of title has no bearing in the case for the title does not admittedly rest in the plaintiff and plaintiff has therefore no right to claim any relief on that : score * * * the site may belong to any one, but it is apparent that defendant has no right to commit nuisance on the land even if it were owned by himself,

(3.) IT therefore, appears that it is within the jurisdiction of a Court, in the case of an actual nuisance, to insist upon the owner of the latrine or other source of nuisance taking due care for preventing offensive smells from emanating from them and causing private nuisance to his neighbour. The defendant in such cases could be ordered to build his latrine after the latest scientific patterns with trap doors, &c, which would minimize the chances of its being a source of trouble and inconvenience to his neighbour. He could also be restrained in regard to its capacity being Overtaxed and thus becoming an inevitable source of private nuisance. He could as well be ordered to take such precautions as regards its user as would prevent its causing injury to the health of the inmates of his neighbours' houses. This aspect of the question has not been duly considered by the Courts below in the present case. A careful scrutiny of the reports of the aforesaid Madras, Calcutta cases and also the case of this Court, namely Rama Rao v. Martha Sequeira [1919] 42 Mad. 796, Amerendra Nath v. Barnagore Jute Factory Co. Ltd. A.I.R. 1923 Cal. 271 and Municipal Committee of Saugor v. Nilkanth [1915] 11 N.L.R. 132 clearly shows that the findings as to the nuisance or otherwise were based on medical or sanitary expert's evidence. This kind of evidence has not been adduced in this case. Its value cannot be underestimated in a case of this kind. For a Court to decide rightly whether a particular nuisance is one in that the inconvenience is only to the public or there is a special injury to a particular individual, such expert evidence is of very great value and is an absolute necessity. Without it the Court may not be in a position to know what scientific or other effectual precautions must the owner of the privy be ordered to take or it would be justified in imposing on him in order to ensure the safety of the health of the inmates of the injured party's house.