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2. Gur Prasad Saxena filed another Suit No. 34 of 1966 on 10th January, 1936 against Radhey Shyam and 5 others for permanent injunction restraining the defendant No. 1 from running or continuing to run the oil expeller plant in his shop. This suit was also based on the ground of private nuisance. It was resisted by the defendant No. 1. The trial court having found that the running of the oil expeller plant by the defendant No. 1 was not a source of nuisance to the plaintiffs and that it would not weaken the building, dismissed the suit. The plaintiff preferred Civil Appeal No. 58 of 1968 against that decision. Both these appeals were heard together and decided by a common judgment by the learned Civil Judge, Mohanlalganj, Luck-now. The appeals were allowed and injunction was issued restraining the defendant No. 1, his servants, workmen and agents from making and causing to be made noise and vibrations from the impugned machines lodged in his premises on the ground floor of the building in question, so as to occasion nuisance, disturbance and annoyance to the plaintiff appellants, as the occupier of the residential portion of the first floor of the same building.

3. Aggrieved, Radhey Shyam has filed second appeal Nos. 133 and 134 of 1971. The appeal No. 133 of 1971 arises out of Suit No. 595 of 1964 whereas the Appeal No. 134 of 1971 arises out of Suit No. 34 of 1966. Since common questions of law and fact are involved in both these appeals, they are being disposed of by one judgment.

4. The appellate court below has, on reappraisal of evidence adduced by the parties, recorded a finding in the following terms:--

"Having regard to the locality and the situation of the property and the class of people who inhabited the same, it appears to me that the running of the impugned machines seriously interferes with the comfort physically of the plaintiff appellant and the members of the family in the occupation of his house according to the ordinary notion prevalent among reasonable men and women." The learned counsel for the appellant submitted that this finding should not be accepted and he referred me to the inspection note of Sri G. P. Srivastava, Civil Judge, Mohanlalganj, dated 10-9-1969. I have gone through that inspection note. It was found by the learned Civil Judge on his inspection that there was no residential premises immediately above the flour mill run by Mahabir Prasad. The shop of the defendant No. 1 is on the ground floor. In the same premises the plaintiff No. 1 resides on the first floor and has his professional office just above the shop of the defendant No. 1. The learned Civil Judge had inspected all the rooms occupied by the plaintiff No. 1 and he found that if the palm of the hand was placed on the walls vibrations could be noticed because of the running of the oil expeller machine. He also noticed that there was monotonous and continuous feeling of slight tremor or 'Zoom' sound because of the running of the oil expeller machine. The observation made by the learned Civil Judge were considered by the appellate court below while disposing of the aforesaid two first appeals. A commission was also issued by the trial court to make local inspection. His report and the site plan prepared by him are paper Nos. C-30 and C-31 which indicate that the residential portion of the plaintiff is just above the shop wherein the impugned machine is installed. The Commissioner had also reported that there were two other flour mills on the southern side of the lane shown in his map but they were covered by the tin shed and there was no residential portion over those flour mills. The flour mill of Mahabir Prasad is, however, situated in the same premises but there was no residential portion over that flour mill as well. On these facts it was contended that the plaintiff who is a tenant in the premises in question has to put with certain amount of noise which is caused by the running of the oil machine and therefore, no injunction should have been issued in the case. The principles relating to private nuisance are by now well settled. In Dhanna Lal v. Chittar Singh (AIR 1959 Madh Pra 240) those principles have been succinctly enumerated as under:--

(6) If the defendant is found to be carrying on his business so as to cause a nuisance to his neighbours, he is not acting reasonably as regards them, and may be restrained by injunction, although he may be conducting his business in a proper manner according to rules framed in this behalf either by the Municipality or by the Government. The latter defence can be effective in a case of public nuisance, but not in that of a private nuisance.

(7) If an operation on the defendant's premises cannot by any care and skill be prevented from causing a private nuisance to the neighbours, it cannot be undertaken at all, except with the consent of those injured by it.

(8) The right to commit a private nuisance can in certain circumstances, be acquired either by prescription or by the authority of a statute."

5. Applying principle No. (4) set forth above, it is manifest that a person can claim injunction to stop nuisance if in a noisy locality there is substantial addition to the noise by introducing of some machine, instrument or performance at defendant's premises which materially affects the physical comforts of the occupants of the plaintiff's house. The appellate court below has found as a fact that the running of the impugned machines would seriously interfere with the physical comfort of the plaintiff ,and the members of his family according to the ordinary notions prevalent among reasonable men and women. This finding being based on evidence is not assailable in second appeal. The plaintiffs were therefore, rightly held to be entitled to the injunction claimed by them. There is no merit in both the appeals.