Actionable nuisance depends on substantial discomfort based on local standards, not personal sensitivities.

1 The plaintiff and the first defendant who may be referred to as the defendant are adjoining landowners, the land of the plaintiff being to the east of that of the defendant. The suit was for a permanent injunction to restrain the defendant, from using a latrine which he had erected at the north - eastern corner of his land, on the ground that it constituted a nuisance to the plaintiff. The Munsiff who tried the suit decreed injunction, in case the defendant failed to construct a latrine with septic tank attached as directed, in the place of the latrine complained of. The defendant appealed to the Additional District Judge, who remitted an issue to the Munsiff reading, Was the latrine erected by the 1st defendant in a reasonable manner so as not to infringe unnecessarily the right of the plaintiff".

2 It is the plaintiff's case, that in addition to his main residential building there is another building or outhouse on his land, which was being used by him as a kitchen, situated somewhat close to the offending latrine. The defendant contended that before that latrine was constructed he had a 'marappura' or pit, which served the same purpose as the latrine but without the removal of the night soil, and was being used in the past and that the newly constructed latrine did not constitute an actionable nuisance to the plaintiff. As found, the latrine was constructed by the 31st May, 1957. While the Munsiff found, that the building of the plaintiff near the latrine was used by him as an additional kitchen, the District Judge held, while remanding the case, that it was not in use as a kitchen, except till a short time before the suit was commenced and that such user itself was with a view to create evidence in his favour. The findings of the two courts as to the previous existence of the 'marappura' or pit are divergent, the finding of the Judge being in favour of the defendant. It was on these findings that the Judge remitted the issue. Nothing that was urged before me is sufficient to shake these findings of the Judge. The further approach made in the case by the Munsiff in the first instance to determine whether there was actionable nuisance, was not sound even on his findings and so the additional issue was necessitated. Whatever be the form in which this issue has been raised, the aspect covered by the issue was explained in the order of remand and was correctly understood by the Munsiff who returned the finding.

3 The question for decision is whether even granting that the plaintiff was using his building near the latrine as part of his living apartments and not as kitchen, the nuisance was actionable. On this, the Munsiff who tried the suit held in favour of the plaintiff. In my view the difference in the use to which the building is put by the plaintiff, introduces only a shade of difference in the quality of the nuisance, for in the case of a kitchen, in addition to pollution of air and to nuisance from sight if at all, there is also the danger of greater contamination of food materials arising from greater proximity. For the decision of this case this nice distinction need not detain me, for the question in the last analysis is whether the nuisance if any, was actionable or not. This will depend on whether the comfort and convenience of the plaintiff had been interfered with substantially and to an appreciable degree, having regard to what may be recognised as the local standard of comfort. The law on the point has been summarised by Salmond on Torts, 13th edition, at pages 188 and 189, in the following extract, which may be quoted with advantage:
"When an action of nuisance is based on mere discomfort or inconvenience this discomfort or inconvenience must be substantial that is to say, it must not be merely trifling or fanciful or such as an average and reasonable man is content to submit to. De minimis non curat lex. The rule is well expressed by Knight Bruce V.C. in Walter v. Selfe 1851 (4) De.G. & Sm. 315 at 322. 'Oug