K. AHMAD, C. J.

( 1 ) THE question that falls for consideration in this case is whether, if the right claimed by the plaintiff has not ripened into one of easement, his action can be founded in tort for nuisance. The admitted facts of the case are that the parties to the litigation are next door neighbours. The house of the plaintiff stands on plot no. 123 and he has a boundary wall on plot No. 121 and No. 122. Just on the west of his house is plot No. 106 of the defendants. In between these properties of the parties there is a boundary wall of the plaintiff on the extreme western end of his property. The lower appellate Court has found as a fact that on 21-8-57 the defendants on the extreme end of their property on the eastern side dug a ditch 30' x 3 1/2 x 1 1/2', and this finding is now concluded in second appeal. It however appears that the two, courts below have very sharply differed on the question of law involved in the present case. The trial Court took the view that as the claim made by the plaintiff was not based on any right of easement or prescriptive right, the suit as constituted was not maintainable. This view has been reversed by the lower appellate Court. The lowe