JUDGMENT

S.S. Dhavan, J. - This is a plaintiff's second appeal from the decree of the Civil Judge of Etah modifying an injunction issued by the Munsif of Kashganj requiring the defendant respondent to remove a nuisance by reconstructing his latrine and, in case of his failure to do so, directing the removal of the latrine. The facts are these. The plaintiff-appellant Budh Sen alleged that he and the defendant-respondent Satya Narain lived in the same street and their houses faced each other; that the defendant had constructed a latrine facing the street and therefore facing the plaintiff's house, that this latrine did not exist at this place before; that the latrine was so constructed that it gave a very offensive smell as a result of which the plaintiff was no longer able to use his sitting room nor take his meals in his kitchen because the filth of the latrine was visible from the plaintiff's kitchen; that the defendant's latrine amounted to a nuisance which interfered with the plaintiff's comfortably living in his own house. The plaintiff prayed for an order closing the door of the latrine which opened on the street and for the removal of the latrine itself.

2. The defendant resisted the suit and denied that he has constructed a new latrine. According to him there always had been a latrine in the place alleged by the plaintiff and he had merely reconstructed the old latrine. He also denied that the use of this latrine had created any nuisance.

3. The trial court disbelieved the defendant's version that the latrine was old and held that he had constructed a new latrine in the place alleged by the plaintiff. It also held that the latrine was a source of nuisance to the plaintiff. It was of the opinion that the plaintiff was entitled to some relief but thought that the defendant should be given an opportunity to remodel and reconstruct his latrine in accordance with the bye-laws of the Municipal Board, but if he failed to do this within two months, the latrine should be removed by the court Amin. On appeal by the defendant the learned Civil Judge confirmed the findings of the trial court that the latrine was new and a source of nuisance to the plaintiff; but it modified the injunction to this extent that the plaintiff was required, not to close the door or remove the latrine; but to close it partially. The terms of the modified injunction are as follows:

"The north faced door of the defendant's latrine in suit shall be closed by a wall at a point two feet high from the ground level and the remaining two feet wide opening covered by a tin shed so fitted as to permit its semi-circular movement along the said wall. The parties shall bear their own costs all through. The defendant shall comply with the said decree within a period of 15 days from today failing which the plaintiff shall be entitled to get it done at the defendant's costs." The defendant submitted to this modification of the injunction but the plaintiff has come to this court in second appeal.

4. In my opinion the lower appellate court was not justified in modifying the injunction. The plaintiff had alleged that the defendant's latrine gave out a bad smell whenever the night soil was taken out by the sweeper and this prevented him from taking his food in the kitchen and using his sitting room. The trial court issued an injunction which gave the plaintiff effective relief while leaving the defendant free to keep the latrine in this place, but the learned Judge observed that if the northern door of the latrine is closed by a wall, the defendant' sweeper "shall have to enter the defendant's said house for scavenging it which will cause nuisance to the defendant," and therefore modified the trial court's injunction. I regard that the learned Judge was influenced by a consideration which was it relevant. The crucial issue in this case is whether the plaintiff is en' titled to have the nuisance removed. The learned Judge agreed with the trial court that the latrine was a nui