Ajit J. Gunjal, J.

This appeal is by the plaintiffs questioning the divergent findings recorded by the Courts below. To appreciate the controversy involved in this appeal, few facts are necessary to be stated.

2. Plaintiff No. 1 is the owner of property bearing CTS No.6163 shown as BCEF in the hand sketch. Plaintiff No.2 and his brother are the joint owners of property bearing CTS No.6126/ABC shown as AGHM. The defendant is the owner of house bearing CTS Nos.6124 and 6125 shown as ABCD in the hand sketch. At the place shown as BKNF there are residential houses. There is a primary school known as DETS within the vicinity of the premises in question. According to the plaintiffs the entire area is residential. The plaintiffs houses are ancient and built with mud bricks. The defendant’s house is also constructed of mud bricks long back. They are also not in a proper condition in as much as they are in dilapidated condition. The AB and BC walls are common walls constructed by mud bricks. Plaintiff No. 1 along with his family and children is residing in the house shown as BCEF. There are school going children in the family. Likewise plaintiff No.2 and his brother and family are residing in CTS No.6124+6125 shown as AGHM in the sketch. Suffice it to say, that the first defendant is making all efforts to set up a power loom in his house which according to the plaintiffs would cause nuisance. The anxiety of the plaintiffs is that by erection of such power loom there is every possibility that the structure would develop cracks and the noise emitted from the said power looms causes nuisance.

3. The plaintiffs would submit that the first defendant after putting up the necessary machinery, is making efforts to obtained license. Apprehension is that the second defendant-Municipality is likely to grant the license. Hence the suit was filed for mandatory injunction restraining the first defendant from setting up a power loom and the second defendant from granting license.

4. The first defendant has filed his written statement denying the existence of a primary school. He has also denied that the house of the plaintiffs are their own houses. It is his case that the AB wall in between the house of first defendant and plaintiff No.2 is a newly built wall with bricks and cement. It is his specific case that he is installing a power loom at a distance of about 21/2 feet from the common wall and about 15 to 20 feet from the place shown as DC in the sketch. According to him the necessary safe guards have been taken to see that the buildings of the plaintiffs is not damaged and running of power loom would not cause any nuisance. According to him the second defendant has not as yet granted any license. Hence the suit is premature.

5. The second defendant has filed written statement contending that the suit is not maintainable and without exhausting all the remedies available under the Karnataka Municipalities Act, the plaintiffs cannot file a suit.

6. On the basis of these pleadings the learned Trial Judge has framed as many as four issues. The learned trial Judge on the material issue has recorded a finding that the erection of a power loom would cause nuisance and further the setting up of a power loom in a residential area is impermissible. Hence decreed the suit.

7, The first defendant questioned the said judgment and decree before the learned appellate Judge. The learned appellate Judge having re-appreciated the evidence has found that the suit is premature in as much as cause of action has not arisen ‘for the plaintiff to seek declaration of mandatory injunction in as much as ‘the power loom has not as yet commenced, but however, he has allowed the appeal in part. Thus modifying the judgment and decree of the learned Trial Judge to the effect that the first defendant is restrained from starting the power loom without obtaining necessary license from the second defendant-Municipality. In so far as second defendant is concerned, the gran