JAIN, J.—The facts of this case are that inside Sojati Gate, Jodhpur, Tej-dan and Chain Singh had lands in a big Nohara out of which 25-30 plots were carved out and sold by them. On 18-6-1952 the defendant Pannalal since then dead, purchased a plot from the said Tejdan and Chainsingh One of the conditions of the purchase was that Panna Lal shall not open any window, opening; Jali, balcony, Toda, Chhajja, Nali or Nal towards south of the plot so purchased. Another piece of land was purchased by one Champa Lal Darji on 15-6-57. Yet another plot was purchased by plaintiff Abdul Gani on 21-6-57 In between the plots so sold by Tejdan and Chain Singh there is a gali 27 8* in length and 3 in width. Since then it appears that house have been raised on the plots. The plaintiff Abdul Gani complains that the defendant has opened on 30-10-1959 a spout in his house which discharges filthy water and urine in the said gali passing on the Kawali of the latrine of the plaintiff which is also in the said gali. The plaintiff lodged a complaint in the Municipality on 7-11-1959 but no action was taken. On 15-6-1961, the plaintiff purchased the gali from Tejdan and Chain Singh. This gali was kept for the passage of the plaintiff and Champa Lal and the plaintiff was to keep it uncovered. The plaintiff then brought this suit on 10-8-1961 and prayed for a perpetual injunction directing the defendants to refrain from discharging any filthy water on the gali owned by the plaintiff and also to prevent him from creating nuisance. It was also prayed that the defendant be directed to remove the spout.

2. The defendant stated that the gali became a khalsa gali in 1957. The house of Champa Lal also opens on it. The defendant had opened or built the spout in 1953. The gali also has the latrine of the plaintiff and filthy water of the latrine also spreads in the same gali. The sale of the gali in favour of the plaintiff was collusive and fraudulent to deprive him and Champa Lal of the lawful use thereof.

3. The learned Munsif by his judgment dated 25-5-1964 held that the plaintiff was not entitled to have the spout removed on account of acquiescence of nuisance. He, however, directed that the defendant shall fix at least 2 inch wide pipe right from his Mori down to the pucca Khaliya so that the discharges from the Mori do not spread on the land. The defendant was called upon to fix up the said pipe at his cost within a month.

4. On appeal the learned Senior Civil Judge, Jodhpur, by his judgment dated 18th February, 1967 dismissed the appeal. It is against this decision that the present appeal has been filed. I have heard arguments at considerable length.

5. Both the courts below have held that the lane was left open for use of the purchasers of the plots, that the Municipality had constructed a Khaliya and provided scavenging services and that the spout was opened in the year 1953. I do not find any good reason for disturbing the findings of facts so arrived at by the two courts below.

6. Now, so far as the appellants case for nuisance is concerned what I feel is that by construction of the pipe for carrying the dirty water through the Khaliya there would hardly remain any ground for complaining of nuisance because in a common gali and in urban areas, such inconvenience has to be put up with, specially when the plaintiff has his own latrine in the gali But the questions that still require considerate on are whether the plaintiff Abdulgani can enforce the covenant which deceased Panna Lal undertook while purchasing the house, that he shall not open any spout in the gali, whether the discharge of any kind through the spout amounts to a trespass on the gali which in virtue of sale has vested in the plaintiff and whether the plaintiff is entitled to an injunction in such a case.

7. The learned counsel for the respondents contended that the vendors of the parties had sold their land into several parcels and had left the gali for common use and benefit which was a restrict

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