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 plaintiffs 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 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 plaintiffs 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 defendants 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 Honble 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 Mishri-mal and P. W. 7 Munnalal were only witnesses about the service of processes and had not stated anything about the alle

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