JUDGMENT : Chander Bhusan Barowalia, J. 1. The present regular second appeal has been maintained by the appellant/plaintiff (here in after referred to as ‘the plaintiff’) against the judgment dated 16.12.2005 passed by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, H.P. in Civil Appeal No. 65-N/04/01, whereby the judgment, dated 31.05.2001, of the learned Sub Judge 1st Class, Nurpur, District Kangra, H.P., passed in Civil Suit No. 312 of 1997, was set aside. 2. Brief facts of the case, as per the plaintiff, are that the plaintiff maintained a suit for permanent prohibitory injunction against the respondents/defendants (hereinafter referred to as ‘the defendants’). The plaintiff averred in the plaint that he is owner in- possession of a residential house situated in Khasra No.505, Mohal and Mauza Dainkwan, Tehsil Nurpur, District Kangra (hereinafter referred to as ‘the suit land’). He has further averred that he and his family members reside in the above house. The defendants are also having their residential house in the same area, which is situated in nearby Khasra No. 502 and the distance between their houses is only 20 meters. The defendants are cultivating/growing mushrooms in their courtyard and for this cultivation they use mixture of water, wheat husk and chicken manure. This said mixture is fermented for a month and there after mushroom seeds are sown in the said mixture. As per the plaintiff, the mixture of water, wheat and chicken manure emits foul smell causing unhygienic conditions. The plaintiff has further averred that due to the foul smell it is very difficult to reside in the house. This cultivation of mushrooms is being carried out by the defendants from September to December and from January to March every year and due to this cultivation the plaintiff and his family members face difficulty to breath, eat and sleep with comfort. As per the plaintiff, it is impossible to reside in his residence and cultivation of mushrooms causes continuous nuisance to him. Despite repeated requests, the defendants are not desisting from their acts, thus the plaintiff was compelled to maintain the suit. 3. The defendants, by way of filing written statement, resisted the suit of the plaintiff. The defendants raised the preliminary objection of maintainability and estoppel. On merits, the defendants contended that the house of the plaintiff is at a distance of 40 meters from their house. 3. The defendants, by way of filing written statement, resisted the suit of the plaintiff. The defendants raised the preliminary objection of maintainability and estoppel. On merits, the defendants contended that the house of the plaintiff is at a distance of 40 meters from their house. As per the defendants, they started the business of growing mushrooms in the year 1986- 87 when the plaintiff was Pradhan of the Gram Panchayat, however, he never objected the same and due to enmity the suit is filed. The defendants have further contended that in 1995 the plaintiff initiated proceedings against them in the Gram Panchayat, which was dismissed, as the defendants produced a certificate of Assistant Scientist, Plant Pathologist, Dr. Y.S. Parmar, University of Horticulture and Forestry, Jachh, which revealed that the mushroom industry is not injurious for human beings and animals. 4. The learned Trial Court on 20.04.1998 framed the following issues: “1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 4. Relief.” 5. After deciding issue No. 1 in favour of the plaintiff and issues No. 2 and 3 against the defendants, the suit of the plaintiff was decreed. Consequently, the defendants preferred an appeal before the learned First Appellate Court, which was allowed and the judgment and decree passed by the learned Trial Court was set aside, hence the present regular second appeal, which was admitted for hearing on 15.09.2006 on the following substantial question of law: “Whether the mixing of the manure within 100 m of the house of the appellant-plaintiff would be a source of nuisance to the plaintiff and other inhabitants of the house and the finding to the contrary given by the first Appellate Court is erroneous and based upon misreading and misappreciation of the evidence?” 6. I have heard the learned vice counsel for the appellant and the learned counsel for the respondents. 7. The learned vice counsel appearing on behalf of the appellant has argued that the judgment and decree of the learned First Appellate Court is the result of mis-appreciation of documents and evidence on record and the same is the result of misreading of the pleadings of the parties. 7. The learned vice counsel appearing on behalf of the appellant has argued that the judgment and decree of the learned First Appellate Court is the result of mis-appreciation of documents and evidence on record and the same is the result of misreading of the pleadings of the parties. She has referred to the evidence of the plaintiff and also relied upon the law as settled by the Hon’ble High Court of Punjab and Haryana in case titled Darshan Ram and another vs. Nazar Ram, AIR 1989 Punjab and Haryana 253, wherein, as per her, in the similar set of circumstances the Hon’ble High Court of Punjab and Haryana has laid down the law that such type of act is nuisance and injunction is required to be issue. Conversely, the learned counsel for the respondents has argued that the action of the defendants is not at all causing any nuisance to the plaintiff and he has further argued that the defendants have right to do business of their choice. More over, as per the learned counsel for the respondents, the plaintiff has failed to prove any nuisance and thus the regular second appeal may be dismissed. In rebuttal, the learned vice counsel appearing on behalf of the appellant has argued that the learned First Appellate Court has failed to appreciate the pleadings, evidence and also misread the same, thus the judgment and decree passed by the learned First Appellate Court may be set aside and the judgment and decree passed by the learned Trial Court may be restored by allowing the present regular second appeal. 8. In order appreciate the rival contention of the parties, I have gone through the records. 9. PW-1, Shri Prem Singh (plaintiff), has deposed that his house is at a distance of 25-30 meters from the house of the defendants. As per this witness, defendants used to sow mushrooms in their house and for that they use mixture of wheat husk, water and chicken manure and the said mixture emits foul smell. As per this witness, this foul smell is unhealthy and causes nuisance. He has further deposed that earlier the defendants used to work 100 meters away from their house. Local Commissioner has also found that the foul smell was emitting from the house of the defendants. As per this witness, this foul smell is unhealthy and causes nuisance. He has further deposed that earlier the defendants used to work 100 meters away from their house. Local Commissioner has also found that the foul smell was emitting from the house of the defendants. This witness in his cross-examination deposed that defendants are doing the work of mushroom cultivation for the last 10-12 years and he complained the matter in the Panchayat, however, he could not deposed whether any report from any doctor was called or not. He had also complained to S.D.M., however, as per him, no notice was given to the defendants. He did not file any report demonstrating that foul smell is injurious to health. 10. Shri Jaswanth (PW-2), Ward Member, deposed that mixture prepared by the defendants was emitting foul smell. As per the statement of this witness, said mixture is being fermented for 25-28 days. He visited the house of the plaintiff and found presence of flies and foul smell. He has further stated that earlier the defendants used to do their business 80 meters away, however, before filing of the suit they started creating nuisance. This witness in his corss-examination deposed that his house is at a distance of 125 yards from the spot and the Panchayat did not call for any report from the Doctor qua the nuisance. Shri Govinder Singh (PW-3) deposed that the mixture prepared by the defendants emits foul smell and due to this smell it is difficult to eat or sleep. He has further stated that this foul smell is injurious to health. As per this witness defendants also used to do their business about 100-110 meters away but thereafter they started working at that place as well as in their house. The defendants were asked by the Panchayat to work on the old site, however, they raised a demand that water facility should be provided there. This witness in his cross-examination deposed that his house is one kilometer away from the spot and no doctor was called for inspecting the spot. 11. Shri A.K. Jhanjee, Advocate (PW-4), who was appointed as Local Commissioner, deposed that on 12.10.1998 he went to the spot and prepared report, Ex. PW-4/A, and map, Ex. PW-4/B. This witness, in his cross-examination, deposed that he did not pass any examination with respect to cultivation system of mushrooms. 11. Shri A.K. Jhanjee, Advocate (PW-4), who was appointed as Local Commissioner, deposed that on 12.10.1998 he went to the spot and prepared report, Ex. PW-4/A, and map, Ex. PW-4/B. This witness, in his cross-examination, deposed that he did not pass any examination with respect to cultivation system of mushrooms. His report reveals that foul smell was emitting from the mixture, which is intolerable and the said mixture was prepared at a distance of 80 feet from the house of the plaintiff. Ex.PW-4/B (spot map) demonstrates that the houses of the parties are adjacent. 12. Dr. Harender Raj (DW-1), through his report, Ex. DW- 2/A, opined that manure prepared for mushroom cultivation is not injurious to health. This witness, in his cross-examination, deposed that Plant Pathology is the study of diseases of plants and he is not an expert in diseases of humans, however, he denied that he has no practical knowledge with regard to mushroom cultivation. Defendant, Shri Narottam Singh (DW-3), deposed that the plaintiff never objected to the act of the defendants when he remained Pradhan of the Gram Panchayat during the year 1987- 88. As per this witness, a complaint was made in the Panchayat and report from the doctor was also called. He deposed that mushroom cultivation does not adversely affect health. He, in his cross-examination, denied that house of the defendants is at a distance of 20-25 meters, but voluntarily stated that their houses are at a distance of 80-90 feet. He denied that they started mushroom cultivation in the year 1997 and as per this witness they leave the mixture for fermentation for 28 days. He has denied that owing to fermentation, foul smell emits, which causes nuisance. He has also denied that due to foul smell it is difficult to live there. 13. As per the report of the Local Commissioner (PW-4) Shri A.K. Jhanjee, Advocate, foul smell was emitting from the mixture, which is there on the spot and the same was intolerable. This witness was not cross-examined on this point, which means that the report of the Local Commissioner is to be accepted in totality. As far as the report of the Regional Horticultural Research Station, Jachh, Ex. DW-2/A, is concerned, the same nowhere suggests that emission of foul smell is tolerable for humans, especially when they reside nearby. This witness was not cross-examined on this point, which means that the report of the Local Commissioner is to be accepted in totality. As far as the report of the Regional Horticultural Research Station, Jachh, Ex. DW-2/A, is concerned, the same nowhere suggests that emission of foul smell is tolerable for humans, especially when they reside nearby. Admittedly, the defendants prepare mixture of water, wheat and chicken manure for the growth of mushroom on their own land, however the said process of mixing water and wheat with chicken manure is causing foul smell and thus creating nuisance to the plaintiff and other inhabitants of the vicinity. The report of the Local Commissioner, Ex. DW-2/A, further reveals that the foul smell is not tolerable. 14. The learned counsel for the appellant has relied upon the judgment rendered by Hon’ble High Court of Punjab & Haryana in case titled Darshan Ram and another v. s Nazar Ram, AIR 1989 Punjab & Haryana 253, wherein the plaintiff was held entitled to the permanent injunction restraining the operation of the furnace. Relevant paras of the judgment are reproduced here-in-below: 7. The plaint is not happily worded. It is contended that in the heading of the plaint, the plaintiff has stated that they are praying for permanent injunction restraining the defendants from committing attempted nuisance by the Cupla furnace newly erected. It is a settled rule of law that the averments made in the pleadings drafted in the Mufissal has to be liberally construed. In the evidence at the trial, the plaintiff has proved by positive evidence that as a result of the working of the furnace recently installed by the defendants, he and his family members are worst affected. Thus, in fact it is not the case of attempted nuisance but a case where nuisance has resulted from an accomplished fact. The parties had led catena of evidence both documentary and oral to prove and disprove their respective contentions and as held by the learned appellate Court, the new furnace has been recently installed by the appellants and this has resulted in nuisance to the plaintiff. Merely because a particular word was not used in the plaint is in-consequential. The parties had led catena of evidence both documentary and oral to prove and disprove their respective contentions and as held by the learned appellate Court, the new furnace has been recently installed by the appellants and this has resulted in nuisance to the plaintiff. Merely because a particular word was not used in the plaint is in-consequential. It is well settled that if the parties know that a point arise in a case and they produce evidence on it, though it does not find place in the pleadings and no specific issue has been framed on it, the Court can still adjudicate thereon. Reference can be usefully made to a Privy Council decision reported as Rani Chandra Kanwar v. Narpat Singh,(1907) 34 Ind App 27, followed by the Apex Court in Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593 and to a Division Bench decision of this Court in Ram Niwas v. Rakesh Kumar, (1982) 84 Pun LR 9 : (AIR 1981 Punj & Har 397, where the above proposition was reiterated. 8. In the light of the ratio of this judgment I hold that the defendants cannot make much capital out of the loose wordings used in the pleadings. The parties led evidence fully knowing the case projected by each of them. Even otherwise, I am of the considered opinion that once the parties have led evidence, it is for the Court to mould the relief on the basis of the case proved. The other submission made by Mr. Verma is that the plaintiff has not been able to prove that as a result of the public nuisance any particular injury has been caused to him. I am afraid the submission is not sustainable. No one can be allowed to use his own property in such a manner that it creates a nuisance for his neighbours. The The basic authority for this proposition is reported as John Rylands and Jehu Horrocks vs. Thomas Fletcher, (1868) LR 3 HL 330. I am afraid the submission is not sustainable. No one can be allowed to use his own property in such a manner that it creates a nuisance for his neighbours. The The basic authority for this proposition is reported as John Rylands and Jehu Horrocks vs. Thomas Fletcher, (1868) LR 3 HL 330. Their Lordships of the House of Lords held as under:- “We think that the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient……………” As stated supra, the learned appellate Court has arrived at a firm finding of fact that as a result of the working of the furnace installed in the premises of the defendants the plaintiff and members of his family are worst affected. The ratio of the judgment rendered in John Rylands’s case (supra) is fully attracted to the facts of the present case. The defendant cannot be permitted to use his property in a manner which creates nuisance to his neighbour. The working of the furnace has caused nuisance to the plaintiff. ……………………………………………………… 11. The learned counsel for the appellants has placed strong reliance on Bhagwan Dass v. Town Mag Budaun, AIR 1929 All 767 and Behari Lal v. James Maclean, AIR 1924 All 392. The principle laid down in these authorities is not remotely attracted to the facts of the instant case. In Bhagwan Dass’s case (supra), the Allahabad High Court held that a person founding a cause of action on public nuisance must establish a particular injury to himself beyond what has been suffered by the rest of the public. In Behari Lal’s case (supra) what was laid down was that in order to establish nuisance actionable discomfort must be substantiated. The ratio of the judgment in Atma Singh’s case (supra) is fully attracted to the facts of the present case. In Behari Lal’s case (supra) what was laid down was that in order to establish nuisance actionable discomfort must be substantiated. The ratio of the judgment in Atma Singh’s case (supra) is fully attracted to the facts of the present case. Relying upon the same, I hold that the plaintiff has fully established his case for grant of permanent injunction. I do not find any infirmity in the judgment of the learned Additional District Jude and uphold the same and dismiss the appeal filed by the defendants.” The judgment referred to hereinabove is fully applicable in the present case, as the facts of the judgment (supra) and present one are to some extent akin, thus the ratio of the judgment (supra) is attractable in present case as well. Therefore, the judgment of the learned Trial Court, where by injunction was granted in favour of the plaintiff, is required to be allowed. 15. The statement defendant, Shri Narottam Singh (DW-3) is not reliable as he is suppressing the truth. The statement of the plaintiff is reliable and trustworthy as PW-4, Shri A.K. Jhanjee, Local Commissioner, who is an independent witness, has specifically stated that the process of preparation of manure for mushroom cultivation was emitting foul smell, making living of the inhabitants impossible, thus this Court finds that the present is a fit case to issue injunction and the judgment passed by the learned Lower Appellate Court is without appreciation of pleadings, evidence of the expert witness has not been appreciated to its right perspective, documents have not been interpreted correctly and there is complete mis-appreciation of the evidence by the learned Lower Appellate Court. Therefore, the only substantial question of law is answered holding that the mixing of manure near the house of the plaintiff by the defendants is a continuous nuisance to the inhabitants of the vicinity and the findings of the learned Lower Appellate Court are erroneous and also based upon misreading and mis-appreciation of evidence. 16. In view of the above discussion, the findings recorded by the learned Lower Appellate Court, whereby the findings of the learned Trial Court were set aside, are held to be the result of misreading, mis-appreciation of facts and the same are quashed and set-aside. Accordingly, the findings recorded by the learned Trial Court are upheld and the appeal is allowed. In view of the above discussion, the findings recorded by the learned Lower Appellate Court, whereby the findings of the learned Trial Court were set aside, are held to be the result of misreading, mis-appreciation of facts and the same are quashed and set-aside. Accordingly, the findings recorded by the learned Trial Court are upheld and the appeal is allowed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. 17. The appeal, so also pending miscellaneous applications, if any, also stands disposed of.