Judgment M. P. Singh, J. 1. This is defendants appeal from a reversing judgment of the third Additional District Judge, Dumka (Santhal Parganas) dated 5th july.1976, in Title Appeal No.69 of 1969. The only question to be determined in this case is whether the appellants are liable to an action on the score of nuisance by noise and vibration caused by the operation of their oil and Dal mill on plot no.345 in Sahibganj which they opened in 1964 with the aid of three electric motors of 15, 20 and 35 horse power in between the two houses of the plaintiffs. The plaintiffs alleged that running of the mill is a source of constant discomfort and annoyance to them and others. It was also said that the vibration had caused cracks in the walls of their house. In the suit the plaintiffs prayed for a permanent injunction restraining the defendants from operating the mill. The defendants contended that there were a number of other mills and factories in the area near about the house of the plaintiffs and the plaintiffs being accustomed to live in the mill area for long, there was no question of any inconvenience and hardship to the plaintiffs or to any body else. It was further said that even the husband of plaintiff no. I had obtained a licence in the year 1953 to run a mill to the same house in which plaintiffs were residing and the licence for which was renewed upto 1959. It was also alleged that the Government and the Municipal authorities had granted licence to the defendants to run the mill and that the present suit had been filed due to enmity because the defendants had got the brother of the husband of plaintiff no.1 evicted from the house in which the mill was installed by the defendants. 2. From the above it seems that the plaintiffs complain of nuisance by noise and vibration and it is of two characters : (i) one of substantial interference with their comfort and convenience in using their house ; and (ii) of physical injury to the premises occupied by them. It is not in doubt that some discomfort and inconvenience were caused to the plaintiffs and will continue to be caused to the occupier of their buildings by the working of the mill. It is not in doubt that some discomfort and inconvenience were caused to the plaintiffs and will continue to be caused to the occupier of their buildings by the working of the mill. The question is whether the noise complained of is of such a character and such a volume as to seriously interfere with the comfort of the plaintiffs according to the ordinary notions prevalent among the people of the locality. If the answer is yes an injunction will be granted. Local conditions have to be taken into consideration. It has to be seen how other people live in that locality. It is well settled that the standard of comfortable living which is to be taken as the test of nuisance is not a single universal standard for all times and places, but a variable standard differing in different localities. As put by Salmond in his famous book "law of torts" (Eleventh Edition) at page 253 : "the question in every case is not whether the individual plaintiff suffers what he regards as substantial discomfort or inconvenience but whether the average man who resides in that locality would take the same view of the matter. The law of nuisance does not guarantee for any man higher immunity from discomfort or inconvenience than that which prevails generally in the locality in which he lives. He who dislikes the noise of traffic must not set up his abode in the heart of a great city. He who lives peace and quiet must not live in a locality devoted to the business of making boilers or steamships Thus, in Sturges V/s. Bridgman, (1879) 11 Ch. D. at 865, Thesiger L. J. said what would be a nuisance in Belgrave Square would not necessarily be so in bermondsey. In Polsue and Alfieri V/s. Rushmer (1960) 1 Ch.234 ; (1907) A. C.121 this doctrine of the local standard of comfort was definitely accepted by the Court of Appeal and the House of Lords. " See also St. Helens Smelting Co. V/s. Tripping (1865) 11 h. L. C. and other cases referred to in the book. On a perusal af the above passage it is quite clear that it is the locality that must be taken into consideration in a case of nuisance by noise and that in considering the standard of comfort the character of the neighbourhood has to be taken into consideration. On a perusal af the above passage it is quite clear that it is the locality that must be taken into consideration in a case of nuisance by noise and that in considering the standard of comfort the character of the neighbourhood has to be taken into consideration. In other words the test of a nuisance causing personal discomfort is the actual local standard of comfort and not an ideal and general standard. But at the same time it is to be noticed that the standard of comfort, which is determined by the locality is limited to those case where the nuisance complained of is productive of sensible personal discomfort, It has never applied where the nuisance complained of consists of material injury to property. The principles laid down by Salmond above-mentioned have been followed in several cases in India. See the cases of (1)Cawashah Bomanji Parakh V/s. Profulla Nath Rudra, AIR 1941 Nagpur 364, (ii)Sheikh Ismail V/s. Venkatanarasimhulu, AIR 1936 Madras 905, (iii) Dhannalal V/s. Thakur Chittarsingh Mehtap Singh, AIR 1959 Madhya Pradesh 240, (iv) Messrs. Dutta Mal Chiranji Lal V/s. L. Ladli prasad, AIR 1960 Allahabad 632. Obviously, therefore, an arbitrary standard cannot be set up which is applicable to all localities. There is a local standard applicable in each particular place and ultimately each case has to be decided on its own facts having regard to the surrounding circumstances. But this does not, however, mean that a person living in a district specially devoted to a particular trade cannot complain of any nuisance by noise caused by the carrying on of any branch of that trade without carelessness and in a reasonable manner. In rushmer V/s. Polsue and Alfieri Ltd. (1906) 1 Ch.234 in a neighbourhood devoted to printing, a printing office was established next door to the plaintiffs residence which rendered sleep impossible. It was contended that a person living in that locality could not complain of such a noise as the neighbourhood carried on, and was devoted to printing work. This argument was repelled by the court of Appeal, and in repelling it Cozens-Hardy, L. J. especially observed at page 250 : "i cannot assent to this argument. A resident in such a neighbourhood must put up with a certain amount of noise. . . . . . . . . . . . . . . This argument was repelled by the court of Appeal, and in repelling it Cozens-Hardy, L. J. especially observed at page 250 : "i cannot assent to this argument. A resident in such a neighbourhood must put up with a certain amount of noise. . . . . . . . . . . . . . . But whatever the standard of comfort in a particular district may be, i think the addition of a fresh noise caused by the defendants works may be so substantial as to create a legal nuisance. It does not follow that because I live, say, in the manufacturing part of Sheffield I cannot complain if a steam-hammer is introduced next door, and so worked as to render sleep at night almost impossible although previously to its introduction my house was a reasonably comfortable abode, having regard to the local standard ; and it would be no answer to say that the steam-hammer is of the most modern approved pattern and is reasonably worked. In short, if a substantial addition is found as a fact in any particular case, it is no answer to say that the neighbourhood is noisy, and that the defendants machinery is of first class character. " When the case went to appeal these observations were approved by the House of Lords as laying down the correct law (Poluse and Alfieri Limited V/s. Rushmer 1970 AC 121 ). The observation quoted above makes the law quite clear on the point that noise alone has, under circumstances, been held to amount to a nuisance. Also as in the bells of a roman Catholic Chapel Soltau V/s. De Held, (1851) 21 LJ Ch.153 at page 159 ; or where the nuisance complained of arose from the noise caused bv horses in an adjoining stable ; Ball V/s. Ray, (1873) 8 Ch. App.467 and Border V/s. Saillard, (1876) 2 Ch. D.692 or, where the noise of the music and shouting arising from the performances of a circus erected near the plaintiffs house lasting from half Past seven till half past ten in the evening every day was so loud that it could be distinctly heard all over the plaintiffs house and above the conversation, though the windows and the shutters were closed : Inchbald V/s. Robinson ; Inchhald V/s. Barrington, (1869) 4 Ch. App.388 ; or where the noise arising from a poultry farm about 10 yards from the plaintiffs house where large number of cockerels were kept was held to be actionable : (Leeman V/s. Montagu, (1936) 2 All EP.1677 ). Even the constant noise made by the lift and the banging of collapsible metal doors has been held to be a nuisance in Newman V/s. Real estate Debenture Corporation Ltd. , (1940) 1 All EP.131, where the following observations of Atkinson J. , at pages 145-146 make the facts so far as the question of noise was concerned quite clear : "as to the complaint of noise, I have no doubt whatever that did amount to an actionable nuisance. There were two main sources of noise. First the lift shaft, as I have said, was not outside the flats, but came up immediately under the end of the plaintiffs bedroom. Of course, it did not affect him while he was in bed, because the business stopped at 6 p. m. , but during the day it was constantly at work, and these collapsible metal doors, which of course had to open and shut every time the lift was used, and the movement of the lift itself coming up under the floor of the flat, I am satisfied were a source of noise. There was door on every floor, and apparently the worst door of all was this fire proof door half-way down the stairs to to basement. They were fitted with springs, but not springs which controlled or checked them. There were two factors which helped noise to reach the plaintiffs flat. There was the lift shaft which formed tube which ran up through the whole building and the borrowed lights running up the sloping part of the stairs on each floor let the noise from each side of the flats on the stair case. I find that the continual hanging of the doors was an inconvenience materially interfering with the ordinary physical comfort of human existence according to plaiff and sober and simple notions obtaining among English people. I use that language because it is in the leading case of Walter V/s. Selfe, (1851) 4 De G and Sm.315 at page 322 and was quoted and applied by luxmoore, J. , in Vanderpant V/s. Mayfair Hotel Co. Ltd. (1930) 1 Ch.138 at page 165. " 3. I use that language because it is in the leading case of Walter V/s. Selfe, (1851) 4 De G and Sm.315 at page 322 and was quoted and applied by luxmoore, J. , in Vanderpant V/s. Mayfair Hotel Co. Ltd. (1930) 1 Ch.138 at page 165. " 3. In the present case, I think, lower appellate court has not at all applied the true test to determine as to whether the running of the defendants mill amounted to an actionable nuisance. It wrongly ignored the important evidence on record regarding existence of other mills in the locality saying that the same was irrelevant, The trial court did consider them as will appear from the following. It has said : "p. W.1 in cross-examination has said that a number of mills existed or do exist in the locality such as the mill of Sitaram banarsi Lal and others. That the defendants mill is not the only mill or the solitory mill in the locality. . . . . . . . . . . . . . . P. W.2 admitted in cross-examination that north of his house there is an Ata Chakki mill of Babu Maharaj. He admitted that his house is in between the mill of Babu Maharaj and the disputed mill. . . . . . . . . . . . . . . . . . P. W.3 has admitted in cross-examination that there are number of mills in Bazar, large and small ;. . . . . . . . . . . P. W.4 admitted in cross examination that the mill of Babu Maharaj is just behind his house. He has further admitted that there is compound wall of Pucca brick around the mill in question. . . . . . . . P. W.5 has admitted that the mill of Dhanna Lal is situate at a distance of 400 to 500 cubits south from his shop. . . . . . . . . . . . P. W.6 has admitted about the existence of Punam Chandra Prakash mill and about the fact that on the upper storey of the mill there is residential house. He has admitted about Chundi Chokhaniyas oil Mill and about the fact that people live in the neighbourhood of that mill. . . . . . . . . . . . P. W.6 has admitted about the existence of Punam Chandra Prakash mill and about the fact that on the upper storey of the mill there is residential house. He has admitted about Chundi Chokhaniyas oil Mill and about the fact that people live in the neighbourhood of that mill. . . . . . . . . . . . P. W.11 the son of plaintiff has admitted in cross-examination that there is a big mill of Dhanraj Sagar Mal across the road in front of the house of Raghunath Prasad Sodani, advocate. " after referring to all these evidences the trial court concluded that people in the locality were used to live very close to such mills without feeling any discomfort and that even advocates were used to live without any discomfort and inconvenience. It was argued before the lower appellate court by the defendants that when others could live with noise produced by the mills why should not the plaintiffs put up with the noise produced by the mill in question. The lower appellate court gave the following reply to that argument : "this line of reasoning appears to have found favour with the learned trial court also. In my opinion, this approach is neither legal nor proper. The evidence on record shows that in the vicinity of the house in Ward No. VI of Sahibganj Municipality there is no other mill except the disputed mill. Since the time that its construction started the plaintiff objected to it on the ground that it would caused nuisance and take away the minimum comfort from them by the sound and disturbance produced by it. Again, because some persons have adjusted themselves to live in constant noise, it cannot be said that the plaintiff should also agree to put up with the same inconvenience. In my opinion, therefore, this line of reasoning is of no avail. " It is clear that it is the lower appellate court and not the trial court which has made a wrong approach to the case. In my opinion, therefore, this line of reasoning is of no avail. " It is clear that it is the lower appellate court and not the trial court which has made a wrong approach to the case. The critical fact is that the lower appellate court has not applied the true test of determining the standard of comfort which must be the ordinary standard of an average person residing in the neighbourhood and the criterion would be the ordinary physical comfort of human existence according to plain, sober and simple notions obtaining amongst the people and not according to elegant and dainty modes and habits of living. This case, therefore, requires to be remanded for fresh decision according to the principles aforesaid. 4 Much argument was advanced by the parties on the point as to whether or not the Subordinate Judge was right in inspecting the premises, the mill in question as also the house of the plaintiffs. It appears that after hearing was concluded on 18th June, 1959, the learned Subordinate Judge visited the mill premises and also the house of the plaintiff presumably under the provisions of Order XVIII rule 18 of the Civil Procedure Code in presence of the parties and he found that the notice from the mill was not terrific and that the same was negligible, almost nil, at the upper storey of the house of the plaintiffs. The lower appellate court has said that the Subordinate judge has acted without jurisdiction when he claimed that the noise was negligible. It may be remembered that the place at the request of the parties and inspected the name in presence of the parties and their advocates. The lower appellate court, therefore, was not right in making serious comment on the act of the Subordinate Judge. In Nowantahepe Nana Nvame Boakye tromu V. . Bechemhene Nana Fosu Gyeabour. AIR 1949 Privy Council 291 (a case from West Africa) the messengers deputed to view the land in dispute and report examined also witnesses. The parties were present during the investigation and the plaintiff not only co-operated with the messengers in their activities but refrained from objection or complaint of any kind when their report was submitted to the court. AIR 1949 Privy Council 291 (a case from West Africa) the messengers deputed to view the land in dispute and report examined also witnesses. The parties were present during the investigation and the plaintiff not only co-operated with the messengers in their activities but refrained from objection or complaint of any kind when their report was submitted to the court. When the plaintiff contended that the messengers had gone beyond their power by examining witnesses instead of confining themselves to scrutiny of the locus and the results of their own observation and this vitiated the judgment, it was observed by the Privy council that the judgment, was not vitiated on that account. It is true that there was a written report submitted by the messengers in that case whereas in the instant case no memorandum of local inspection was prepared by the learned subordinate Judge. But in my opinion, the central fact remains that the trial court visited the place at the request of the parties and inspected it in their presence and in the presence of their advocates. There was no rule at that time for preparing memorandum of inspection although by later amendment it beeame necessary. The judgment was delivered only after three days of the inspection. In the circumstances the lower appellate court was not right in saying that the Subordinate Judge acted without jurisdiction. In Ugan Singh V/s. Kesrimal, AIR 1971 SC 2540 at 2545 in paragraph 17 it was observed by the Supreme Court that where evidence on record was also an element in the formation of the trial courts judgment but stressed by the observation of the Judge during the site inspection in presence of the counsel of the parties, his finding in respect of the disputed property was not vitiated. The decision of court below in that case was based mostly on the site inspection and the evidence on record. Here also the appellate court was bound to consider whether the trial courts decision was giyen only on the basis of his local inspection or also on the basis of the evidence on record and to what extent the site inspection was utilized by the trial court. That has not been done, Mr. S. C. Ghose contended that the trial court was in error in discarding the evidence of the expert (PW 12) on the basis of his local inspection. That has not been done, Mr. S. C. Ghose contended that the trial court was in error in discarding the evidence of the expert (PW 12) on the basis of his local inspection. " He urged that local inspection can be used only for the purpose of understanding the evidence and not for contradicting a witness. In support of this contention reference was made to the case of Abdul Baqi V/s. Fakhrul islam, AIR 1937 Patna 333 and Md. Mian V. Jugeshwar, ILR 27 Patna 554 at 569. It appears that in the former case the Judge has observed that what he found on local inspection falsified the witnesses, evidence. In the latter it was observed that the purpose of a local inspection w as to understand the evidence and not to bring fresh evidence on the record. In the present case the trial Judge no doubt said that the other reasons for disbelieving PW 12 was that he held local inspection of the disputed mill and of the plaintiffs but at the same time the trial court has given other reasons also. Any way I am not inclined to express any opinion with regard to the truth of otherwise of the merits of the respective cases of the parties as the title appeal is being sent back to the lower appellate court for reconsideration. It will, of course, be open to the parties to the parties to raise any point there. 5. Mr. S. C. Ghose lastly contended that this appeal was concluded by findings of fact but as pointed out above the court of appeal below has not applied the true test in determining the standard of comfort prevailing in the locality in question. It has mainly decided the case on the finding that the abnormal noise from the mill materially compared physical comfort of the plaintiff and the occupiers of her house and it had also caused inconvenience and annoyance as alleged by the plaintiff. I may also point out that the word locality does not always mean even three to four miles : see the case of In re Rajabather, AIR 1959 Madra 450 (a case of house-search under section 103 Cr. C. C. ). I may also point out that the word locality does not always mean even three to four miles : see the case of In re Rajabather, AIR 1959 Madra 450 (a case of house-search under section 103 Cr. C. C. ). The lower appellate court, however, will take common sense view of the word locality and will not be bound to adopt this meaning, The ordinary meaning of the word locality is neighbourhood or vicinity. The lower appellate court shall mention the distance at which the other mill or mills are situated as it has done in the case of some of the witnesses and then consider whether they were situated in the locality in which the house was situate. 6. Counsel for the appellant submitted that the plaintiffs had left the house and were living at a different place and so there was no question of any discomfort to them. Suffice to say that the case is being sent back for reconsideration and this matter may be urged there. 7. For the reasons given above the judgment and decree passed by the lower appellate court are set aside, the appeal is allowed and Title Appeal no.59 of 1969 is sent back to the lower appellate court for fresh decision, in accordance with law and in the light of the principles aforesaid. It must not be influenced by any of the observation made in this judgment and it will form its own independent opinion on the case. In the circumstances there will be no order as to costs.