R.S.A. No. 3775 of 2008 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3775 of 2008 (O&M) Date of Decision: January 13, 2011 Sadhu Singh …..Appellant Vs. M/s Star Rice Mills and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.J.S. Brar, Advocate for the appellant. Mr.R.K. Girdhar, Advocate for the respondents. -.- M.M.S. BEDI, J. (ORAL) This is plaintiff’s second appeal against the judgment and decree of the Courts below dismissing the suit of the plaintiff- appellant for permanent injunction. The plaintiff had sought to restrain the defendant- respondents to run their rice sheller installed on the southern side of the house of the plaintiff. The plaintiff had claimed that on account of operation of the sheller during day and night, rice husk of the sheller causes R.S.A. No. 3775 of 2008 (O&M) [2] permanent nuisance to the plaintiff and the heaps of rice husk damaged the crops of the plaintiffs. The plaintiff- appellant claims that the plantation was damaged by the birds, which gather near the rice sheller. The courts below have arrived a finding of fact that the house of the plaintiff is not situated near the rice sheller. He had admitted in his cross-examination that he was residing in the village. A wall to the height of 11 feet has been raised. There is a passage of 11 feet in width in between the land of the plaintiff and the boundary wall. It has also been found as a matter of fact that no nuisance is being caused to the plaintiff on account of the noise pollution. Learned counsel for the appellant has submitted that there has been misreading of evidence. Relying upon the photographs Exs.P1 to P6 (black and white photographs) and Exs. P-7 to P11 , it has been submitted that the rice husk level when goes beyond the height of the wall, it falls out and comes in the fields of the plaintiff- appellant. Exs. P-7 to P-11 give an indication that the rice husk over-flows and falls in the fields. Counsel for the respondents has contended that the photographs Exs. P-1 to P-11 are prior to the report of Local Commissioner and prior to the incident of raising of wall by the defendant from 8 feet to 11 feet height. The lower Appellate Court in para 17 of the judgment has given a finding of fact that the boundary wall has been raised to 11 feet by adding extra 3 feet by the defendant- respondents. An observation has also R.S.A. No. 3775 of 2008 (O&M) [3] been made to the effect that the plaintiff- appellant had raised plinths on his land and rented the same to Markfed. Taking into consideration all the facts, I am of the opinion that no substantial question of law is involved in the present case warranting interference in the concurrent finding of fact arrived at by the Courts below. The defendant - respondents have got a right to run the rice mill without causing any disturbance to the neighbourhood. The necessary steps seem to have already been taken by raising the wall of the rice mill, as has been discussed in the judgments passed by the Courts below. This appeal is dismissed. However, to strike a balance between the right of the defendants to run their rice mill and the right of the plaintiff to be not prejudiced by the said running of rice mill, it is observed that the defendant- respondents will be entitled to run his rice mill in such a manner that the husk or waste product does not fall out of the boundary of the rice mill. In case of any such eventuality, it will be open to the plaintiff- appellant to take the legal remedy available to him including the remedy of removal of nuisance as per the provisions of Chapter X of the Code of Criminal Procedure. January 13, 2011 (M.M.S.BEDI) sanjay JUDGE