Kan Singh, J.:— This second appeal before me is by the defendant. The subject matter of the litigation is the construction of a shop by the defendant on a Chabutra in the market of Pali.

2. The plaintiff respondent has a shop in the same market. The plaintiff's case in brief was that the construction of the shop over the Chabutra by the defendant has caused discomfort amounting to nuisance to the plaintiff in multifarious ways; firstly it resulted in diminishing the light and air which the plaintiffs' shop used to receive when the Chabutra was open; secondly the impugned construction created an obstruction to the flow of foul water in a nearby narrow lane, which would consequently be absorbed in the lane itself and emitting foul smell; thirdly as a result of this construction the foul air caused by urination spoils from dogs or human excreta was prevented from spreading out from the mouth of the lane as hitherto fore. On the other hand, the direction of the flowing-out foul air from the lane was changed and the same would consequently invade the plaintiffs' shop lastly it was averred that on account of the impugned construction the view of the plaintiffs' shop was obstructed.

3. The litigation has a chequered history. To start with when the construction of the shop was commenced the plaintiff brought a suit in 1955 for an injunction restraining the defendant from putting up the construction. However, as the construction was completed before the conclusion of the suit, the plaint was amended. There was a second amendment of the plaint as well and the case was fought finally on the basis of the second amended plaint.

4. The suit was decreed by the learned Civil Judge, Pali, on 17-9-1959. The learned Civil Judge ordered that the defendant shall pull down at his own expense all the construction made by him on the Chabutra (platform) and shall keep the Chabutra open with no construction over it. In particular the learned Civil Judge ordered the demolition of the shop, balcony and the stair case constructed by the defendant as also the step that was put on the khalsa land in front of the plaintiff's shop.

5. Aggrieved by the judgment and decree of the learned Civil Judge, the defendants presented an appeal to the court of learned District Judge, Pali. The learned District Judge (Shri M.R Purohit) came to the conclusion that no actionable nuisance had been made out by the plaintiff. The learned Judge, interalia, observed that the plaintiff had not cared to examine any Health and Sanitation Expert in order to show that the construction made by the defendant would in any manner constitute nuisance but he had on the contrary produced only lay men, seven in number, who had deposed that the construction had more or less brought in the words of the learned Judge “hell on earth”. In the result the learned Judge accepted the defendant's appeal, set aside the judgment and decree of the learned Civil Judge and dismissed the plaintiffs' suit.

6. Against the judgment and decree of the learned District Judge the plaintiffs brought an appeal to this court. The appeal came up for hearing before Hon'ble Beri, J. Beri, J. felt that the learned District Judge was in error in thinking that in the absence of any scientific evidence, the evidence of laymen was not helpful or decisive for determining the question whether the foul smell caused or added to the discomfort of the neighbour or whether on account of a particular construction the foul air was diverted or not. Apart from this Beri, J. found that the learned District Judge had not come to grips with the case and had not carefully gone through the statements of the witnesses in this behalf His Lordship pointed out that the learned District Judge had wrongly thought that there were 7 witnesses on the side of the plaintiffs, who were deposing to nuisance Two of the witnesses namely P.W 6 Mishrimal and P.W 7 Munnalal were only witnesses about the service of processes and had not stated anything about the alleged nuisance. In the result, therefore, the plaintiff's appeal was allowed, the judgment and decree of the learned District Judge were set aside and he was directed to decide the appeal afresh.

7. Accordingly the case went back to the learned District Judge. The learned District Judge (Shri R.L Mehta) inspected the site in the presence of the parties, heard arguments and then disposed of the appeal. He formulated the following three points for his consideration in the light of the observations made by Beri, J. while remanding the case.

“(1) Whether foul and bad smell is produced in the Khalsa lanes, which are in the south and east of the plaintiff's shop and whether this foul smell previously passed out of the eastern lane towards the north?

(2) Whether on account of new construction made on the Chabutra of the defendant's in front of the Northern mouth of the Khalsa lane (which is in the east of the plaintiffs' shop) foul and bad smelling air coming out of this lane, has been obstructed and diverted towards Chabutri and the shop door of the plaintiff?

(3) If it is so whether this foul air causes a good-deal of discomfort and nuisance to the plaintiff or to the person or persons using or occupying the shop or in carrying on the business at the plaintiffs' shop?”

8. While considering the first point the learned Judge observed that the statements of the plaintiffs' witnesses had not been shaken in the least in cross-examination and in the light of the site inspection what they deposed was worthy of belief. The learned District Judge went on to observe that even the defendant's witnesses had to admit that the lane being open is spoiled by the dogs and also on account of the water discharged from the rooms contiguous to the lane. It was further admitted by the defendant's witnesses that the lane was used for urination by people coming that side. The learned District Judge, therefore, came to the conclusion that foul smell was emitted from this Khalsa lane.

9. On the second point the learned Judge held that previously foul air of the lane directly passed towards the north after crossing over the Chabutra (platform) of the plaintiff but alter the new construction it had been obstructed from coming out towards the north and was diverted towards the West with the result that bad smell causes discomfort to persons sitting on the Chabutri of the plaintiff and outside the shop door.

10. On the third question the learned Judge reached the conclusion that as a result of the foul smell it had become very difficult for the plaintiff and others to sit on the Chabutari for carrying on the business.

11. Lastly the learned Judge considered the question whether the whole of the construction made by the defendants on their Chabutra should be ordered to be demolished or only the demolition of a portion of it would be sufficient to do away with the new nuisance caused to the plaintiff. The learned Judge thought that if the staircase as a whole with the step ‘R’ and the wall of the shop or verandah between the portion E to F as per site map Ex. 3 were demolished and removed and the portion of the shop between marks A-N is permanently kept open, the foul air of the lane would pass towards north and would not be diverted towards the Chabutari of the plaintiff. In the result the learn District Judge allowed the appeal in part and modified the decree of the learned Civil Judge by ordering only the demolition of the staircase standing between the points E-F, the roof of the Verandah or shop and the step ‘R’ and further issued a permanent injunction that no new construction shall be made or any door with shutters or any obstruction shall be put up on the Chabutra by the defendant at the places from where the stair case and the wall were being ordered to be removed.

12. It is in these circumstances that the defendants have come up in appeal to this court.

13. For a proper appreciation of the arguments I may briefly describe the location of the impugned Chabutra and the construction there on as also of the lane and the plaintiffs' shop, with reference to the site map dated 4-3-1957 (Ex. 3) which is an admitted document.

14. The shop of the plaintiff is situated in the Bazar which runs from East to West. If one enters this Bazar from the East then the plaintiffs' shop would be on the left. The door of the shop is towards the North. The shop's dimensions are roughly East-West 7-¼′ and North-South 10-¼″. In front of the shop there is a Chabutra of 1-¼′ width running East to West. The Khalsa lane of which mention has been made, is just on the East of the plaintiffs' shop and runs North to South. The lane is 2′ 4″ in width. It runs along the length of the plaintiff's shop East to West and beyond it to a further length of 5′ or 7′ towards South and then the lane is closed by a wall which according to the learned District Judge, who inspected the site was 4′ or 5′ high. Just on the back side of the plaintiff's shop there is another Khalsa lane running East to West which meets the afore-mentioned lane at the South East corner of the plaintiffs' shop. This lane also is a narrow one. On the Eastern side of the disputed lane is the back side of the shops which open in what is known as Sarrafa Bazar. This Sarrafa Bazar runs North to South. The defendant's shop on the back side of which the disputed construction was made opens in the Sarrafa Bazar and had its door towards the East. The right hand side of this shop while entiring runs parallel to the Bazar running East to West in which the shop of the plaintiff is situated. The disputed Chabutra was 4′ from East to West and 7′ 4″ from North to South. There was a space of 2′ 6″ between the Northern side of the plaintiffs' shop and the Chabutra. The Chabutari of the plaintiffs' shop which was just ten inches in height joined the South-West corner of the disputed Chabutra. The defendant has constructed the stair case in fornt of the mouth of the disputed Khalsa lane and by it the roof the defendant's shop is reached. On the Northern side of this stair-case the defendant had constructed a shop on the Chabutra.

15. Now in assailing the judgment and decree of the learned District Judge, learned counsel for the defendant contends that no cause of action was disclosed against the defendant. Learned counsel argued that defendant had not created the nuisance in the lane or otherwise creates any nuisance on his premises. The defendant, he urges, had only exercised his right of ownership over his property by making the construction and such a construction could not be taken to created any nuisance to the plaintiff. Learned counsel maintained that such a nuisance was not known to law and therefore, the learned District Judge was in serious error in decreeing the plaintiffs' suit.

16. Learned counsel referred me to few a standard books on Torts; Clerk & Lindsell at 59 and Winfield on Tort at p. 560. He also cited Lagan Navigation Company v. Lambeg Bleaching, Dyeing and Finishing Company Limited (1), Gerred v. Crowe (2) Nield v. The London & North Western Railway Company (3), Samul Jacobus Greyvensteyn v. Daniel Wilhelmus Hattingh (4); Amarendra Nath Dey v. Baranagore Jute Factory Company, Ltd.*, (5); Jugal Kishore v. Ram Saran Das (6).

17. Learned counsel for the respondent on the other hand, submitted that the question whether an owner could use his property legitimately for causing material discomfort to a neighbour has been settled in the previous judgment of this court by which the case was remanded to the learned District Judge. The learned counsel then submitted that it was a question of fact whether material discomfort had been caused to the plaintiff by the impugned construction and thus the question whether any nuisance had been committed or not by the defendant cannot be raised in second appeal as the finding on this question is only one of fact. Learned counsel for the respondent too read to me some passages from Winfield on Tort at page 62 and from S. Ramaswami Iyer's Law of Torts at page 471 Learned counsel for respondents further cited Madura Municipality v. K. Nataraja Pillai (7) for the submission that the question whether any nuisance was committed, was a question of fact and this question cannot be reagitated in second appeal.

18. As regards the cases cited by the learned counsel for appellant, learned counsel for respondent, submitted that those cases related to other situations. He pointed out that cases regarding putting up embankments to prevent flood waters coming to one's property were not applicable. He emphasised that even when flood water comes on one's land that cannot be let out by constructing any channel or a hole in the embankment to another's land or property. He referred to Madras and Southern Maharaja Ry. Co. Ltd. v. Maharajah of Pithapuram (8). Before proceeding further I may once again refer to the judgment of Beri, J., with a view to seeing what questions survived for consideration by the learned District Judge. Whatever has been decided by Beri, J. will be taken to be final for the present purposes. Beri, J. formulated the following four points in the light of the rival contentions raised by the learned counsel for the parties:—

“(1) Whether no tortious liability arises against the defendants because they are merely making a lawful use of their own land?

(2) Whether the learned District Judge was in error in laying undue emphasis on scientific evidence and has for that reason not examined the evidence fully or with exactitude and which has resulted in a misreading of evidence?

(3) Wheher the plaintiff is entitled to complain of the alleged nuisance on account of the flow of water oyer his small platform in absence of the direct pleading on that account?

(4) Whether the construction on the Chabutari causes such obstruction that the foul air is diverted on that account from the narrow lane occasioning a nuisance to the plaintiff?”

19. Regarding point No. 1 Beri, J. referred to passages from Halsbury's Laws of England (Third Edition, Vol. 28) Para 177; Clerk and Lindsell on Torts (11th Edition-1954) at Page 5(5), Para 970, Salmond on Torts, 10th Edition, pages 228-231, and Kerr on Injunctions, 6th Edition at page 138 and then went on to observe:

“From the aforesaid authoritative statements of law it is correct to conclude that the defendant cannot escape his liability in the case before me on the ground that he is only making a lawful use of his land. If the plaintiff succeeds in establishing that his user amounts to a private nuisance adding to his discomfort he has a cause of action. I am, therefore, unable to appreciate the argument of the learned counsel for the respondent that a complaint of nuisance which is precisely the complaint in the case before me could be completely answered by a broad defence that the defendant is using his land and that absolves him of his tortious liability.”

20. Point No. 2 was already exhausted because the case was remanded for fresh appraisal of the evidence.

21. Point No. 3 was decided against the plaintiff.

22. Regarding point No. 4 it was observed:

“A decision on this point would require a close examination of the evidence on record and may perhaps also require a site inspection to appreciate the evidence. Because the learned District Judge has not closely and critically examined the evidence led by the parties in this case and his judgment on that account stands vitiated I am not inclined to reassess the evidence myself. The question of nuisance complained of is a question dependent on several factual aspects including the consideration of locality where its existence is complained. I would, therefore, in these circumstances, prefer to leave the District Judge, the first appellate Court, and the final court for facts, to reassess the entire evidence in the light of the principles enunciated above and decide the appeal afresh.”

23. Having carefully read the judgment I am satisfied that the question whether the impugned construction caused such an obstruction that the foul air was diverted on that account from the narrow lane and caused any nuisance to the plaintiff was open for decision by the learned District Judge. Under point No. 1 the passage that I have extracted also suggests the something. What was negatived was the broad defence that by using his own property the defendant was absolved in tortious liability.

24. The term ‘nuisance’ is incapable of an exact definition as observed in Winfield on Tort (VI Edition) at page 536. But its concept is well understood. As the Author has observed it may be described as “unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it.” It is a common law wrong having long history. There must be interference with the use or enjoyment of land, or of some right over or in connection with it, causing damage to the plaintiff. The forms of this are innumerable. Noise, smells, pollution of air of water, are the most usual instances, but there are many others. The two main heads are injury to property and interference with personal comfort. The escape of fumes, which kill vegetation and cattle, is an illustration of the first, and excessive tolling of church bells of the second. But whatever be the type, it does not follow that any harm constitutes a nuisance. The whole law on the subject really represents a balancing of conflicting interests. Some noise, some smell, some vibration, every one must endure in any modern town, otherwise modern life there would be impossible. It is repeatedly said in nuisance cases that the rule is sic utero tuo ut alienum non laedas, but the maxim is not very informative. If it means that no man is ever allowed to use his property so as to injure another, it is palably false. If it means that a man in using his property may injure his neighbour but not if he does so unlawfully, it is not worth stating. In fact, the law repeatedly recognises that a man may use his own so as to injure another without committing a nuisance. It is only if such use is unreasonable that it becomes unlawful. The homely phrases, “Give and take” “live and let live” are much nearer the truth than the Latin Maxim. “A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with.”

25. Where the interference is with personal comfort, it is not necessary in order to establish a nuisance that any injury to health should be shown. It is enough that there is material interference with the physical comfort of human existence reckoned “not merely according to elegant or dainty modes and habits of living but according to plain and sober and simple notions among the English people” The Author proceeds to say that one of the chief tests is reasonableness “what is reasonable according to the ordinary usages of man kind in society or more correctly in a particular society” and it is important to distinguish this term in the law of nuisance from its use elsewhere in the law of tort, especially in negligence. Reasonableness plays an important part in determining whether or not there has been a nuisance. Just as in England Courts deal with a case according to English peoples habits of living, in India we have to go by the habits of Indian people.

26. It is common knowledge that in busy Bazars where the local authorities have not provided urination or urinals in sufficient number or where the urinals are so dirty people generally use lanes near the Bazar for urination. Here the habits of the Indian people differ from English people, who are not used to urination by the side of the Bazar or at places which are frequented by people. Sense of Indian people for cleanliness and sanitation is by and large not developed to that extent.

27. Before proceeding further I ought at this point to deal with the question whether the finding recorded by the District Judge regarding creation of the nuisance by the impugned construction is one of fact and therefore, not open to challenge in second appeal. In Madura Municipality through its Executive Authority, Commissioner v. K. Natraja Pillai (7), the municipality was going to construct a public latrine behind the plaintiff's fruit stall in Madura. The courts below in that case held concurrently that the erection of a latrine would constitute a nuisance to the plaintiff and held that the plaintiff was entitled to the relief claimed. The learned Justice, therefore, observed that the finding that the erection of a latrine would constitute a nuisance to the plaintiff was a finding of fact and could not therefore be challenged in second appeal. It may be noted that the observations are marked with brevity and no reasons have been given for holding that the question whether nuisance was constituted or not, was one of fact only.

28. In Jugal Kishore v. Ramsaran Das (6), (equivalent to 209 Indian Cases Page 462) the defendant was alleged to have built a latrine and a ‘Mori’ or drain. The door of the plaintiff's shop opened into a narrow lane through which only the latrine of the defendant was accessible. The removal of the stinking nightsoil through the lane caused physical discomfort to the occupant of the plaintiff's shop. The defendant did not claim any easement to remove the nightsoil by this lane: The question was not whether the Sandas i.e latrine itself emitted any foul smell when it was shut but whether the sandas could be used as such without causing material discomfort to the occupant of the shop. The sandas must be cleaned once or twice a day and if the sweeper with stinking filth must pass by the shop of the plaintiff, the sandas must be held to be a nuisance. It was in this context that the learned Judge had observed that the question whether certain proved facts establish a nuisance or not is a question of law.

29. To my mind, whether by a given set of facts nuisance is or is not established is a mixed question of law and fact. The primary facts would be whether the defendant had committed certain act attributed to him. The allied question will be whether the evidence in that behalf was reliable. Further this will again be a question of fact whether any discomfort was being caused to the plaintiff or not and if so whether such dncomfort was material or substantial. It is on the last aspect of the matter that the question will arise whether the act or omission amounts to a nuisance. Nuisance is a legal wrong i.e an injury caused to an individual and that can be determined on the given set of facts by the application of the legal principles on which the question has to be judged whether any nuisance was caused or not. As I have quoted from Winfield, the balance has to be maintained between the right of the occupier to do what he likes with his own and the right of his neighbour not to be interfered with and the test is reasonableness. What is reasonable according to the ordinary usages of mankind living in society or more correctly in a particular society, ‘here people using the Bazar of Pali’. What is reasonable so as to constitute nuisance or not would be an inference of law to be drawn by the court from the proved facts.

30. Therefore, in the present case, the question whether the lane is rendered dirty and emits foul air is not open here. Similarly the question that persons occupying the plaintiff's shop are made uneasy or discomfortable as a result of the foul smell coming from the lane is not open to question. There is also no basis for holding that the defendant contributes in making the lane filthy in any manner. It also cannot be argued that with the construction of the shop on the Chabutra the foul air that was free to pass from over the Chabutra hitherto would not now pass in that volume and a portion of it would be diverted towards the West in the direction of the plaintiffs' shop.

31. The plaintiffs' witnesses have stated that on account of the foul air coming to the plaintiffs' shop it was difficult to carry on the business there.

32. Therefore, under the circumstances, the only question that now remains for decision is whether this amounts to nuisance.

33. To be precise one has to put himself and answer the following two questions: (1) whether the defendant had created any nuisance by interfering with the natural process of abatement or diminution of the nuisance existing in the lane by making of the impugned construction; (2) what is the degree of interference and whether it is substantial so as to afford a cause of action?

34. As I have Said already the primary facts have to be taken as final. Since it is a mixed question of law and fact whether any nuisance was or was not constituted and the test is one of reasonableness and such a standard of reasonableness has to be applied the above facts and in doing so one has to balance the right of the owner to use his property with the interference with the rights of the plaintiffs to a reasonable degree of comfort.

35. All comforts cannot be expected in such a kind of market as in Pali. Also as I have observed the sense of cleanliness in the society in which we live is not so developed as else where. For example if one passes urine in a clean city like Paris near somebody's shop that would be very much of a nuisance there but this may not be so under Indian conditions.

36. Now the map shows that the lane runs North to South. It is joined by another lane behind the plaintiff's shop and that lane runs East to West. There is a gap of 2′ 6″ between the mouth of the lane and the defendant's property. The dirty lane existed from long before the defendant built on his Chabutra. The Chabutra was situated right in the Bazar, like the plaintiffs' shop. In balancing the reasonable user of his land by the defendant with the comforts of the plaintiffs one has to bear in mind that the land situated right in the Bazar could reasonably be used by the defendant for building a shop. There is no manner of doubt that the plaintiffs' shop was situated just near the mouth of the dirty lane and the foul smell of the dirty lane would be coming to the plaintiffs' shop even without the construction over the Chabutra though there would be difference in degree. What will be the precise difference in the degree and whether it will be so substantial as to aggravate the pre-existing nuisance to a substantial degree is a question on which much light has not been thrown by the witnesses. It has, therefore, to be answered only with reference to the physical features presented in the case and also in the light of the climatic conditions. The witnesses will have one believe and so has the learned District Judge thought that the wind direction was mostly South to North. Therefore, if there was an obstruction on the Northern side of the lane near its mouth the foul air would not be able to escape towards the North and would necessarily escape towards the plaintiffs' shop. I am unable to share this opinion. Wind blows not only from the South but also from the West for most of the year. To be precise for the most of the year the direction of the wind in this part of the country is South-West to North East. Of course during the rainy season when it is about to rain the wind direction may be from North to South or East to West Again during winter when cold winds are blowing the direction would be North to South.

37. Now the defendant has not generated any foul air on his own property or in the lane. It is the result of the want of sense of cleanliness or decency on the past of the people who urinate in this lane in the Bazar, that too as I have observed perhaps on account of lack of requisite number of urinals or such urinals as would be clean so that the people may be induced to use them. Be that as it may, it cannot be said that the nuisance originates from the property of the defendant. One cannot be very meticulous about the direction or the volume of the foul air from the lane like the present one. Urine, human excreta or spoils of animals generate a number of gases, some of them being lighter than air would have the tendency of going up vertically, others may remain nearer the ground and spread laterally according to the gust of wind at the moment. Direct beat of the sun may also play its part in drying up foul substances and if there is no sunshine or sunshine is less as during rains or in winter it would aggravate the emission of the foul air. What volume of foul air would be diverted by the impugned construction towards the plaintiffs' shop and to what extent discomfort would thereby be increased is, to my mind, dependent on factors which are imprecise. Witnesses have no doubt said that one cannot sit on the Chabutra of the plaintiff or near his door but the business has continued on the plaintiffs' shop all along though the present litigation started 17 years back. In such a state of inadequacy of material for judging and balancing the rival interests of the defendant to build on his property with the expectation of reasonable comfort by the plaintiffs I find myself unable to hold that the act of the defendant constitutes nuisance in law. In the circumstances I am unable to uphold the conclusions of the court below.

38. In the result I allow the appeal set aside the judgment and decree of the learned District Judge dated 16-5-66 and hereby dismiss the suit. The parties are, however, left tobear their own costs throughout.

39. Learned counsel for the respondent prayed for grant of leave for appeal under sec. 18 of the Rajasthan High Court Ordinance, 1949, in view of the importance of the question involved, the leave is granted.