The running of a flour mill in a residential area can amount to a private nuisance if it causes substantial discomfort and inconvenience to the residents.

B. UPADHYA, J.

( 1 ) THIS is a defendants appeal arising out of a suit for the issue of permanent injunction restraining the defendant from maintaining a flour mill in premises No. 12, Library Bazar mussoorie and restraining defendant No. 2 from granting a flour mill lience to defendant No. 1 to run a flour mil) in the said premises.

( 2 ) THE plaintiff is the owner of premises No. 11 Library Bazar, Mussoorie which is a three storied building. The upper two storeys are used for residential purposes and the ground floor is used as a shop. It is stated that in 1945 the appellant-defendant established an electric flour mill in premises No. 12 Library Bazar which is adjacent to the plaintiffs house. According to the plaintiff the running of this flour mill amounts to a private nuisance. It causes a lot of noise and vibration so that the plaintiff and the members of his family find it difficult to reside in their house, and it causes great inconvenience and discomfort to them. As the plaintiffs efforts to seek the intervention of the local authorities were unsuccessful he had to bring the suit which has given rise to the present appeal. The City Board, Mussoorie was impleaded as defendant No. 2, but it did not contest the suit. On behalf of defendant No. 1, the present appellant, certain grounds were taken in defence. It was urged that the suit was barred by Section 326 of the Municipalities Act; that the running of the mill did not amount to a nuisance; that the suit was barred by estoppel and acquiescence, and that the existence of the mill was essential for the convenience of the residents of the locality and that no other suitable accommodation in the vicinity was available where electric power connection could be had for installing a flour mill. A plea relating to under-valuation of the suit and insufficiency of the court-fee was also taken but was not pressed. The learned Civil Judge framed the necessary issues and found that Section 326 of the Municipalities Act was no bar to the institution of the present suit specially as the bar was not pleaded by the City Board, Mussoorie itself. The issue relating to estoppel and acquiescence and other issues were decided in favour of the plaintiff. The main dispute at the trial appears to have been as to whether the running of the mill amounted to a nuisance.

( 3 ) IT appears that initially it was stated on the plaintiffs behalf that the nuisance alleged was both public and private. The plaintiff appears to have given up the plea of public nuisance. A private nuisance is a civil wrong but a public nuisance is a criminal offence, an act not warranted by law or an omission to discharge legal duty which act or omission, according to Stephens Digest of criminal Law "obstructs or causes inconvenience or damage to the public in the exercise of rights common to all His Majestys subjects. public and private nuisance are not in reality two species of the same genus at all, and the stand relating to public nuisance was thus rightly given up at the early stage of the trial. After considering the evidence produced by the parties the learned Civil Judge held that the running of the mill

"produced a very unpleasant noise which causes great inconvenience to the plaintiff and the members of his family and that it generates vibrations on account of which the walls, floor, doors, windows, furniture, utensils etc. in the plaintiffs house appear to be shaking and rattling. "

On these findings the learned Judge held that the mill caused inconvenience and trouble to the plaintiff and the residents of his house and the running of the mill amounted to a nuisance. In recording his findings the learned Judge kept carefully before him the proper legal principles which should guide a court in recording findings like this. He considered the observations made in several judicial pronouncements and took the view that the plaintiffs suit was well founded. He therefore decreed the suit. On appeal by the defendant the