Tarachand Laxmichand vs Hussen Kalu and Others

Baxi, J.—The Appellant-Plaintiff and the Respondents Nos. 1, 2 and 3 are the owners of adjoining houses situated in Vadi Khadki in the

locality known as the Mahalaxmi Street in Junagadh. The Plaintiff has the right of discharging filthy water through an outlet in the Respondents'' fali.

The rear of the Plaintiff''s privy abuts in this fali and he has a right of way for his sweeper over it for the purposes of access to it for cleaning

purposes. A heap of dust or earth had accumulated in this fali with the result that the dirt and filth discharged from the Appellant''s house were

obstructed and caused nuisance. On receipt of a complaint from some persons about this nuisance, the Junagadh City Municipality issued a notice

dated 15-11-44 upon the Plaintiff and the owners of other properties and also the Respondents through their agent Habib who used to manage the

house in their absence ordering them to remove the nuisance not to allow any nuisance to accumulate in future. The Municipality thereafter started

prosecution of the Appellant, Habib and some of the owners of other adjoining properties.

In 1946 however these persons requested the Municipality to remove the nuisance at their expense without prejudice to their respective rights and

there upon the prosecution against them was withdrawn. The nuisance in the form of accumulated filth was removed but the heap of dirt causing the

obstruction to the flow of water remained as before. The Plaintiff filed the present suit against the Respondents Nos. 1, 2 and 3 for a mandatory

injunction directing them to remove the heap and for a permanent injunction restraining them from obstructing passage of water into the fali and

obstructing their sweeper. The Junagadh City Municipality Respondent No. 4 was impleaded as a Defendant to this suit on the ground that u/s

38(a) of the Junagadh State Municipality Act it could make an order for abatement of a nuisance against the owner of the property alone and not

to Ors. and that its notice dated 15-11-44 was illegal and without jurisdiction.

The Plaintiff therefore prayed for an injunction against the City Municipality restraining it from interfering with his private rights. The learned trial

Judge dismissed the Plaintiff''s suit with costs. He held that though it was proved that a heap of dust had accumulated in the Respondents'' fali

causing obstructions to the free passage of filthy water which the Appellant had a right to pass from his property, no decree could be passed

against the Respondents because it was not proved that they had caused it. He dismissed the suit against the Municipality also. The learned

Assistant Judge confirmed the trial Court''s decree in appeal. The Plaintiff has now preferred this second appeal against the appellate decree of the

learned Assistant Judge.

It is contended on behalf of the Appellant that the Respondents 1, 2 and 3 as well as their agent Habib were not personally responsible for the

accumulation of the dust or the creation of the nuisance in the sense that they personally threw the dust there or instructed or authorised any one to

do so. He however argued that even then the Respondents remained liable in law as the servient owners for allowing the nuisance to accumulate on

the servient tenement and causing obstruction to the passage of water from his client''s drain and thereby disturbing his easement.

The learned Assistant Judge referred to the deposition of the Plaintiff Ex. 41 in which he admitted that the nuisance was caused by the

Respondents'' tenants after the death of their father. He also referred to the Plaintiff''s application to the Municipality Ex. 38 stating that Khoja

Jamal had caused the obstruction by making a heap of earth and in accordance with his statement in that application the Plaintiff had subsequently

given notice to Jamal to remove the obstruction. This Jamal is the owner of one of the houses in the Respondents'' fali. The learned Assistant Judge

therefore held that the Respondents could not be held in law responsible for the disturbance of the Plaintiff''s easement for the obstruction was

caused by their tenants and by a third party viz., Jamal and the Plaintiff''s cause of action was against them.

I am unable to agree with this view of the learned Assistant Judge. Reference may in this connection be made to the observations at pages 233

etc., of K.N. Joshi''s Book on Easements and Licences 1939 Edition based on English decisions. I cannot do better than quote them:

Every disturbance of an easement right is a wrong for which the owner of the dominant tenement has a legal remedy. The party creating the wrong

is liable to be sued irrespective of the fact whether he is, or not the owner of the servient tenement. (page 233)

Where an easement right has been disturbed, and so long as the disturbance continues, the person or persons who instigated the discreated it and

the person on persons who can be shown to be in some sense responsible for its continuance are equally liable. Thus the person who has the

power to abate a nuisance, but who refuses to put an end to it, is also liable to be sued. (page 234)

A suit against the landlord would not lie, if the alleged nuisance is found to have been caused and continued by his tenant during the tenancy, and

without the landlord''s authority. (page 235)

In my view, the rule which can be deduced from the above observations appears to be that the person who is actually responsible for the nuisance

is always liable to be sued whether he is the owner of the servient tenement or not. Secondly if the alleged nuisance is found to have been caused

or continued by a tenant of the servient owner during the tenancy and without his authority, then the servient owner is not liable. Subject to the

above rule, if a person has the power to abate nuisance but who refuses to put an end to it, he is liable to be sued and can be sued along with the

person actually committing it. It follows therefore that the owner of the servient tenement is exempt from liability if the premises are in the

occupation of a tenant and he can show that the nuisance was created by such tenant.

The Respondents admittedly stay in Africa and their house is let to tenants. It is obvious therefore that they could not have personally created the

obstruction nor could their agent also have done so. The obstruction must necessarily have been caused either by the other tenants or by owners of

adjoining properties. Thus, in admitting that the obstruction had been caused by the Respondent''s tenants the Appellant merely stated an obvious

inference. If the Respondents wanted to be exonerated on this ground, it was their duty to have shown that the Plaintiff was aware of tenant or

tenants who were actually responsible for causing disturbance to the easement. Further, if according to the Plaintiff Jamal was responsible for the

creation of the nuisance, he had the liberty to implead Jamal as a Defendant but the Respondents have the power to abate the nuisance and did not

put an end to it and therefore they are liable whether Jamal had been impleaded as a Defendant or not. This view finds support from the Junagadh

City Municipality Act where u/s 38(a) the liability to abate the nuisance is primarily placed on the owner of the property.

Mr. Virani for the Respondents contended that the Plaintiff had claimed relief from his clients on the ground that they had personally brought the

nuisance on the property. They had failed to substantiate these allegations and the Courts below were therefore perfectly justified in dismissing the

suit. I however find from the plaint that the Plaintiff has based his cause of action on the Respondents'' legal liability to abate the nuisance as the

owners of the property also. There is therefore no substance in the contention that no decree can be passed against the Respondents on the basis

of this liability.

As against the Municipality who is impleaded as Respondent No. 4 the appeal must be dismissed. The notice which the Municipality served on

the Appellant purported to have been given u/s 38(a) of the Municipality Act and the period of limitation against Municipality under the Act is six

month from the date of the order. The suit has admittedly been filed more than six months after the order. It is therefore clearly time barred. I do

not agree with the learned Advocate''s submissions that the order cannot be said to be under the Municipality Act because it was addressed to him

contrary to the provisions of Section 38 under which the notice can be given to the owners of the property only.

The appeal is therefore allowed against the Respondents Nos. 1, 2 and 3. A decree as prayed by the Plaintiff in his plaint should be passed

against them. They shall pay the Appellant''s costs throughout. The appeal against Respondent No. 4 is dismissed with costs.