( 1. ) THIS is defendants second appeal from the decree passed by the Additional district Judge, Sagar, on 20-9-1956, affirming the decree of 25-1-1956 by the civil Judge (Class II), Khurai, granting a perpetual injunction restraining the defendants from running a flour-mill close to the house of the plaintiff-respondent in Manorama Ward of Bina town. ( 2. ) PLAINTIFF-RESPONDENT has his house at a distance of 8 or 9 feet from the flour-mill. The allegation of the plaintiff was that the working of the flour-mill caused great trouble to the occupants of the house and the smoke, vibrations and the noise of the mill interfered with their physical comforts. Both the Courts below have come to the conclusion that the working of the defendants flour-mill in that locality makes such a great noise generally from 2 P. M. to 9 P. M. and some-days from 8 A. M. to 10 P. M. (with a short break) that during that time it is difficult for the occupants of the plaintiffs house to hear their own conversation, and undoubtedly it interferes with their physical comforts. The Courts, therefore, granted the injunction solely on the basis of abnormal or unreasonable noise produced by the flour-mill.

( 3. ) SHRI K. B. Sinha, learned Counsel for the appellants, at first challenged the finding. But I find that the plaintiffs evidence is fully corroborated by a Railway overseer, three members of the Bina Municipal Committee, by the Secretary of the Municipal Committee and two other independent witnesses. I am, therefore, satisfied that there is sufficient and reliable evidence to support this conclusion. Shri Sinha, therefore, tried to convince me that noise, however great, can never amount to actionable nuisance and that it is the locality that must be taken into consideration in such cases. The learned Counsel also contended that the appellants have taken license from the Municipal Committee and the mill is being worked according to rules framed by the Municipal Committee.

( 4. ) DURING the course of arguments I found that there was some confusion between a public nuisance and a private one. I think it will be better first to remove any misunderstanding on this point. It has been stated in winfield on Tort, Sixth edition, (Chapter 18, page 536) that nuisance is incapable of exact definition, but for the purposes of the law of tort it may be described as unlawful interference with a persons use or enjoyment of land, or of some right over, or in connection with it. In clerk and Lindsell on Torts, Eleventh Edition, (Chapter 17, page 560) it is observed that nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, quasi-easement, or other, right used or enjoyed in connection with land, when, it is a private nuisance. A public nuisance is always a criminal offence; the same cannot be said of a private nuisance.

( 5. ) IT follows as a corollary from it that the acts constituting public nuisance are all of them unlawful acts; those which constitute private nuisances are not necessarily or usually unlawful. A private nuisance usually is caused by a person doing on his own land something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land but extend to the land of his neighbour in one of the throe ways :

(1) by causing an encroachment on his neighbours land, when it closely resembles trespass, (2) causing physical damage to his neighbours land or buildings or works or vegetation upon it, or (3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land. It is also a nuisance to interfere with some easement Or quasi-easement used or enjoyed with his neighbours land.

(See pages 561-563 of Clerk and Lindsell on Torts;