A. P. SRIVASTAVA, J.

( 1 ) THIS appeal and cross-objection arise out of a suit to recover damages and to get a permanent injunction issued.

( 2 ) THE respondent Gajraj Singh resides in the abadi of village Jalalabad and owns a grove situated on plot No. 793 of that village. The grove contains mango, guava, kamrakh and papaya trees and used to yield a profit of about Rs. 1,000 per annum to its owner. The appellant Raj singh obtained a lease of plot No. 766 of the village and about four years before the institution of the suit which has given rise to this appeal started a bhatta for the construction of bricks an that plot. According to Gajraj Singh, this bhatta is situated at a distance of about!. 200 yards from the grove and about 100 feet from the village abadi where his residential house is situated. The Bhatta had been started in contravention of the bye-laws framed by the District Board in that respect. The smoke from the bhatta adversely affects the plaintiffs grove and causes damage to its trees and fruits. The smoke has also an adverse effect on the health of the plaintiff and the other members of his family. The defendant was asked to remove the bhatta to a place sufficiently away from the plaintiffs house and grove. He did not comply with the request. The plaintiff, there-fore, sued to recover Rs. 2000 as damages and claimed a mandatory injunction directing the defendant to run his bhatta at a distance of at least 500 yards from the grove and the house of the plaintiff.

( 3 ) THE suit was contested by the defendant who pleaded that the bhatta had no adverse effect on the plaintiffs grove and was not injurious to the health of the plaintiff and the members of his family in any way. The plaintiff had not suffered any loss of any kind. He also pleaded that the suit was barred by estoppel and acquiescence and that the plaintiff was not entitled to the injunction claimed. He alleged that the suit had been filed on account of enmity.

( 4 ) BEFORE the learned Munsif who tried the suit both the parties produced evidence in support of their respective contentions. The witnesses examined included two experts produced by the plaintiff and two produced by the defendant. The plaintiffs experts were Sri S. B. Mathur, smoke Inspector of the Kanpur Municipal Board, and Sri Rajpal Singh, the Assistant mycologist, Fruit Research Station,. Saharanpur. The defendants experts were Sri Teja Singh, deputy Director of Horticulture, Central P. W. D. , New Delhi and Sri G. S. Randhawa, Lecturer in Horticulture in the Agricultural Institute at Pqosa, The Munsif himself inspected the place twice.

( 5 ) AFTER a consideration of the entire materials on the record that were put before him, the learned Munsif recorded the following findings:

1. That the plaintiffs grove was situated at a distance of about 200 yards from the defendants bhatta. The defendants case that the distance between the two was about 350 to 400 yards was not correct.

2. That the grove of the plaintiff was within such distance from the bhatta of the defendant that the smoke coming from the chimney of the bhatta of the defendant was sure to harm the grove of the plaintiff.

3. That the plaintiffs grove had actually been damaged by the smoke and the fumes coming out of the defendants bhatta. A large number off guava fruits were found lying under the trees in dried and charred condition-showing that they had been affected by the smoke. The twigs and branches of the mango trees showed signs of drying up. The guava and the papaya trees did not bear fully developed fruits. The mango fruits produced by the trees in the grove showed signs of a disease known as the blacktip disease which was caused by the effect of the smoke. This damage to the plaintiffs grove was the result of the smoke of the defendants bhatta. It could not be attributed to the want of proper care of the grove on behalf of the plaintiff as was alleged to be the case by the defendant.

4. That the plaintiff had not been ab

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