- (1.) DEFENDANT Bherulal has preferred this appeal against the judgment and decree dated the 13th October, 1960 passed by the Civil Judge, Udaipur in a suit for injunction.
(2.) THE facts giving rise to this litigation are unusual. Bherualal after obtaining the permission of the City Corporation, Udaipur opened a window and put in five spouts over a lane situate in the locality known as Khemsara-ka-Timba, Udaipur. Five persons residing in the said locality instituted a suit principally against Bheru Lal and the Udaipur City Corporation on the ground that the plaintiffs have been using the lane in question for easing themselves and on account of the opening of the window by the defendant Bherulal towards this lane it will prejudice their privacy in the exercise of their right of easing themselves in the lane. Bherulal and the City Corporation, Udaipur resisted the suit inter alia on the grounds that the act of the plaintiffs was a public nuisance in which no right of easement could arise and that Bherulal had constructed the said window and the spouts after obtaining the necessary permission from the City Corporation. THE Munsiff, who tried the suit, ordered that Bherulal may place a gauze wire on the window opened by him for a period of six months so that within that period the plaintiffs may be able to construct latrines for themselves and meanwhile this window may not affect their privacy or safety. On the question of the spout the learned Munsiff ordered that for a proper and regulated drain of water a pipe be fitted therein and from the third storey only rain water be discharged. Against this judgment and decree the plaintiffs preferred an appeal and Bherulal and the City Corporation Udaipur filed cross-objections. Both the appeal and the cross-objections were considered by the Civil Judge, Udaipur and he came to the conclusion that the order of the Munsiff in directing Bherulal to fit a spout opening in the second storey with a pipe line was correct but on the question of gauze wire he differed with the conclusion of the Munsiff and held that Bherulal's gauze wire must continue for ever. Bherulal has now come up in second appeal. Mr. Mehta, appearing for the appellant, contends that the decision contained in Ex. 1 dated the 5th June, 1889 came to be modified by the order contained in Ex. A. 1 dated 9th November, 1947 and also Ex. A. 2 dated 10th October, 1945. The plaintiffs, therefore, argued the learned counsel, have no right as claimed by them in the lane in dispute. He further contended that the alleged right of the plaintiffs amounted to a public nuisance in regard to which no easement could ever ripen. Besides, the learned Munsiff had given the period of six months only to extend an added convenience for the benefit of the plaintiffs and even that the learned Civil Judge has set aside thereby indirectly recognising the right of the plaintiffs. No body appears for the respondents. Both the Courts below have held that the plaintiffs have not succeeded in proving that they are the owners of the lane in dispute. The only question which survives for consideration is whether the plaintiffs in the circumstances of the case acquired a right of easement to ease themselves in an open lane and if so are they entitled to get protection for this right by preventing the defendant Bherulal from keeping his window over-looking this lane absolutely open. It is true that the plaintiffs' right to ease on the land in dispute was taken notice of as early as 5th June, 1889 and was indirectly recognised as would be evident from Ex. 1. This, however, came to be questioned in Ex. A. 2 dated the 10th October, 1945 wherein the Public health Engineer after inspection of site expressed the opinion that even the construction of public latrines in the lane in question would be injurious to health. In Ex. A. 1 the right to use this lane as an open latrine was also questioned. The first point that I will have to consider is whether a long usage of this lane as an open latrine could create any recognizable right in favour of the plaintiffs. In my opinion the answer to this question must be in the negative. It is elementary that passing of faecal matter in an open ground surrounded by human habitation is not only insanitary and indecent but is a source of hazard to human health Any act which is capable of common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, is a public nuisance. Peacock in his treatise 'the Law Relating to Easements in British India' (Third Edition) observed on the subject as follows: "no easement arises where the nuisance is a common or public nuisance. " (Weld vs. Hornby ). " In Weld vs. Hornby Lord Ellenborough observes: "and however twenty years' acquiescence may bind parties whose private rights only are affected, yet the public have an interest in the suppression of public nuisance, though of longer standing. " And in Rex vs. Cross, the same judge says: "and is there any doubt that if coaches, on the occasion of a rout, with an unreasonable length of time in a public street, and obstruct the transit of His Majesty's subjects who wish to pass through it on carriages or on foot, the persons who cause and permit such coaches so to wait are guilty of a nuisance?. . . . . . . . . The King's highway is not to be used as a stable-yard. It is immaterial how long the practice may have prevailed, for no length of time will legitimate a nuisance. " Gale states the legal position thus: "there can be no prescription to make a public nuisance, which is a prejudice to all people because it cannot have a lawful beginning, by licence or otherwise, being against the common law. " No length of time, therefore, can allow the practice of using a lane as a public latrine, as the effects of such a practice are undoubtedly injurious to the health of persons living around that locality. It may be remembered in this connection that on the two sides of the lane there is a Higher Secondary School and its windows open on this lane on which the right to openly ease is claimed. If the plaintiffs cannot acquire any right in regard to this public nuisance, as I hold they cannot, then there is no question of preventing or limiting the exercise of the right of defendant Bherulal in keeping his own window open. To this extent, therefore, the judgment of the Civil Judge must be and is hereby set aside. In my opinion, the learned Munsiff had given six months period to the plaintiff to make their own arrangement of private latrine and it was for this purpose that as a matter of indulgence in favour of the plaintiffs that he had directed the defendant Bherulal to place a gauze wire on his window. There is no legal justification for it I, therefore, hold that the plaintiffs have no legally recognizable right to ease themselves in the lane in question and consequently there can possibly be no restriction on the right of Bheru Lal to keep his window open and he need not place any gauze wire on his window. Mr. Mehta states that his client is willing to place a pipe from the second storey. In view of this undertaking it is not necessary to decide this aspect of the case. The result is that this appeal succeeds the judgment and decree of the Civil Judge, Udaipur is set aside and the suit stands dismissed. Defendant Bheru Lal is entitled to his costs in this appeal. . ;