1. Heard M.H.Laskar, learned counsel for the appellant as well as Mr.S.K.Ghosh, learned counsel for the respondents.

2. The appellant as plaintiff filed Title Suit No.15 of 2010 praying for a decree for removal of nuisance by dismantling the illegal and unauthorised RCC Latrine Tank constructed at the entrance of the homestead of the plaintiff as well as for compensation. The short facts leading to the filing of the suit is that the appellant/plaintiff is a resident of Hailakandi Town, Ward No.4 within the Hailakandi Municipal Board. The appellant's neighbour i.e.defendant no.1 had dug pit adjacent to the only entrance path to the appellant/plaintiff's residence with a view to construct an RCC Latrine Tank. To stop the process, the appellant/plaintiff filed the written complaint on 29.12.2009 before the defendant no.2 i.e. Hailakandi Municipal Board, followed by a notice under Section 326 of the Assam Municipal Act, 1956. According to the appellant/plaintiff, by the time the said notice was issued, the construction of the RCC Latrine Tank had been completed. As no remedial action had been taken by the said defendant no.2, a polluting atmosphere was created. In such a circumstance, the appellant/plaintiff was constrained to institute the suit. The respondent/defendant nos. 1 and 2 filed individual written statements denying the averments made in the plaint and stating that the appellant/plaintiff is in no way affected by the construction of the said RCC Latrine Tank. According to respondent no.1, he had filed petition seeking permission for construction of the said RCC Latrine Tank and to that effect had also deposited Rs.1000/- in the Cash Branch of the Hailakandi Municipal Board and construction had commenced only after deposit of the said money. The respondent/defendant no.1 also averred that the other inhabitants had never objected to the construction. In so far as the respondent/defendant no. 2 is concerned, the statement and averments made in the plaint were denied while admitting the fact that although permission was applied for, the same was pending till the time of filing of the written statement.

3. The learned Trial Court framed as many as four Issues which are as follows:

“ 1. Is there any cause of action for the suit?

2. Whether the RCC latrine tank constructed by the defendant No.1 which is adjacent to the only entrance path of the homestead of the plaintiff has caused discomfort and inconvenience in the locality?

3. Whether the RCC latrine tank constructed by the defendant No.1 is illegal and unauthorised?

4. To what relief(s) the plaintiff is entitled for?”

4. In respect of Issue No.3 the Trial Court held that the construction of the RCC latrine tank was without consent of the Hailakandi Municipal Board, which is in violation of the mandatory provisions of the Act, particularly Section 197 of the Assam Municipal Act, 1956. At the same time, in respect of Issue No.2 the learned Trial Court held that due to subsequent construction of Septic Tank by the respondent/defendant no.1 and further no steps having been taken by the appellant/plaintiff pursuant to order dated 8.6.2011 in Petition No.685/20 dated 12.5.2011 allowing local inspection by an Advocate Commissioner, the problem with regard to discomfort and inconvenience has been solved and as such the cause of nuisance did not exist. On this finding the Trial Court held that the appellant/plaintiff is not entitled to any relief claimed despite the Latrine tank having been constructed in violation of the provisions of the Statute.

5. Being aggrieved, the appellant/plaintiff filed Title Appeal No.11/2012 and the First Appellate Court while concurring with the judgment and decree of the Trial Court also held that in view of the provisions under Section 174(2) of the Assam Municipal Act, the application seeking permission filed by the respondent/defendant no.1 must be deemed to have been sanctioned by the Hailakandi Municipal Board. Having held that the appellant/plainti

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