The use of a latrine causing odors that invade a neighbor's property establishes a nuisance warranting injunction.

1. This is defendants' appeal from a reversing decree dt. 2-9-1974 passed by the Additional District Judge, Guna, in Civil Appeal No. 86 of 1979 arising out of the decree dt. 11-7-69 of the Civil Judge Class II, Mungaoli, whereby the respondent's suit (C.S. No. 47 - A / 66 instituted on 4-7-66) for a mandatory injunction for closure of the 'nikas', 'mori' and 'Khidki' of the appellants newly constructed latrine was dismissed.

2. The following facts were admitted in the written statement.
There is a 3' X 31/2' wide lane running east - west between the respondent's house to its north and the appellants' house to the south of the said lane at Athaipura Ward No. 7 in the town of Mungaoli. With the sanction of the Municipal Committee in 1964 the appellants opened a door in their house in the northern wing which is situated adjacent to, and along, the aforementioned lane. In 1965 the appellants applied to the Municipal Committee Mungaoli for sanction to construct a latrine in the northern wing of their house. (The respondent avers that he was then away from Mungaoli). The respondent's wife's objections to the proposed construction of the latrine were overruled. Then appellants constructed a latrine and appurtenant 'khidki' and 'mori' in the northern wing of their house and dug along a kucchi nali for receiving watery refuge - discharge from the 'mori' of the latrine in June 1965.

3. The respondent filed the suit in question on 4-7-66 alleging that the appellants had not started using the newly constructed latrine.

4. The respondent obtained an ex parte temporary injunction against the appellants on 4-7-66. It was confirmed on 10-11-1966. The appellants' appeal against the order dt. 10-11-66 was allowed by the Additional District Judge, Guna in C.M.A. No. 1/67 on 30-6-1967.

5. The respondent's application dt. 12-1-68 for leave to amend the plaint was allowed on 10-2-68. The amendment was to the effect that the appellants started user of the latrine on 5-7-1967 a fact not controverted by the appellants in their consequential amendment of the plaint.

6. The respondent's suit was based on the following averments. He is the owner of the lane in question, and that the appellants encroached upon a part of his lane in constructing the latrine.

7. The respondent had initially contended that the proposed user of the appellants' latrine was likely to be a nuisance to the respondent.

8. By virtue of the plaint - amendment - (referred to at para 5 above) the respondent averred that the appellant's user of the latrine from 5-7-67 resulted in foul smell (emitting from the latrine and the 'nali' dug along the lane) invading his kitchen which is immediately opposite the latrine, and his shop, which is to the west of the kitchen. All this has not only adversely affected the respondent's enjoyment of his property but also has proved a hazard to his health and the health of his family members. In short, the appellants are guilty of nuisance.

9. The appellants challenged the correctness of the respondent's averments (set out in the paras 7 and 8 above).

10. The parties produced documentary evidence and examined witnesses.

11. The learned Civil Judge dismissed the suit after reaching the conclusion that the appellants user of their latrine did not amount to their committing any nuisance.

12. The learned Additional District Judge, Gwalior reversed the aforementioned conclusion and passed a decree in respondent's favour in the following terms :

13. The lower courts have concurrently held that though the respondent is not the exclusive owner of the suit lane and is neither in exclusive possession thereof, yet his house, which