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PETITIONER:

NARPATCHAND A. BHANDARI

Vs.

RESPONDENT:

SHANTILAL MOOLSHANKAR JANI AND ANR.

DATE OF JUDGMENT18/03/1993

BENCH:

VENKATACHALA N. (J)

BENCH:

VENKATACHALA N. (J)

KASLIWAL, N.M. (J)

CITATION:

1993 AIR 1712 1993 SCR (2) 471

1993 SCC (3) 351 JT 1993 (4) 510

1993 SCALE (2)103

ACT:

Bombay Rents Hotel & Lodging House Rates Control Act, 1947:

Section 13(1)(c)-Expression 'Landlord'-Scope of-Includes an

usufructuary mortgagee where the tenanted premises is the

subject of usufructutary mortgage-Usufructuary mortgagee can

file a suit for -eviction'Nuisance'-For eviction-What is.

Transfer of Property Act, 1882 : Sections 58 (d) and 109.

Constitution of India, 1950 : Article 136.

Appeal-Concurrent findings of fact-Findings based on

appreciation of ample evidence-Interference with such

findings not called for by Supreme Court.

HEADNOTE:

The appellant-defendant was in occupation of a flat as its

tenant in a storeyed building comprised of a large number of

flats occupied by different tenants. When the owner of that

building mortgaged with possession the said building in

favour of respondents-plaintiffs, the appellant defendant

and other tenants in different flats of that building became

tenants under respondents-plaintiffs (usufructuary

mortgagees) and continued as such tenants on payment of

monthly rents to them. But by a quit notice dated July 3,

1967 the respondents-plaintiffs determined the monthly

tenancy of the appellant respecting the premises in his

occupation and sought to recover from him the possession of

the premises by instituting a suit in the court of Small

Causes at Bombay on the very ground on which his tenancy was

terminated, that is, that the defendant had been guilty of

conduct which was a nuisance or annoyance to the adjoining

or neighbouring occupiers, under clause (c) of sub-section

(1) of Section 13 of the Bombay Rents Hotel and Lodging

House Rates Control Act.

The trial court, on an appraisal of the oral and documentary

evidence adduced by the parties, recorded its findings on

issues in favour 471

472

of the respondents-plaintiffs. Consequently it decreed the

suit of the respondent-plaintiffs for recovery of possession

of the premises. The appellate court before which the

decree of the trial court was appealed against by the

appellant-defendant, on its re-appraisal of the evidence,

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affirmed the findings of the trial court and dismissed the

appeal.

The findings as to the acts of nuisance and annoyance

attributable to the appellant and the persons who were

residing in the premises are (i) that the appellant erected

a Textile Printing Mill on the terrace of the storeyed

building and ran it during nights so as to make the

occupiers of the adjoining and neighbouring tenements suffer

the vibrations and noise in the building arising on account

of the running of the Mill and loose their quiet and sleep

during nights; (ii) that he unauthorisedly utilised the

water stored. in the common over-head tanks on the terrace,

meant for domestic use of all the occupiers of the tenements

in the building, for running his Mill a non-domestic

purpose; (iii) that the appellant and the persons residing

with him in the premises had often removed the radio aerials

and T.V. antenas of the occupiers of the adjoining and

neighbouring tenaments which had been fixed above the common

terrace of the building-, (iv) that they were wrongly

preventing the respondents- plaintiffs and their workers in

reaching the common terrace for repairs of radio aerials,

T.V. antenas, telephone lines and the like of the occupiers

of the neighbouring tenaments in the building by blocking

its staircase.

Feeling aggrieved by the decree of the trial court and its

affirmation by the appellate court, the defendant impugned

the same by filing a writ petition under Article 227 of the

Constitution before the High Court of Bombay, but that writ

petition was rejected in limine.

In appeal to this Court it was contended on behalf of the

appellants (a) that an usufructuary mortgage of tenanted

premises cannot rile a suit for recovery of its

possession from the tenant under section 13(1) (c) of the Act;

(b) the findings of the appellate court recorded respecting

acts of nuisance and annoyance not having been based on the

evidence on record, become unsustainable; (c) the acts found

to have been committed by the appellant-defendant and the

persons residing with him in the premises, even if are true,

they could not have been regarded as acts amounting to

nuisance or annoyance under section 13(1) (c) of the Act.

Dismissing the appeal, this Court,

473

HELD 1. The expression 'landlord' in sub-section (1) of

section 13 of' the Act includes an usufructuary mortgagee

where the tenanted premises is the subject of usufructuary

mortgage. Section 13(1) contains nothing repugnant in its

subject or context which would disentitle an usufructuary

mortgagee, as a landlord of the tenanted premises to recover

its possession from the tenant on the ground envisaged under

clause (c).

[482A, 480B]

S.B. Abdul Azeez (By Lrs.) v. M. Maniyappa Setty and Ors.,

[1988] 4 S.C.C. 727, relied on.

V. Dhanapal Chettiar v. Yesodal Ammal, A.I.R. 1979 S.C.

1745, referred to.

Nanalal Girdharlal and Anr. v. Gulamnabi Jamalbhai Motorwala

and Ors., 1972 (13) Gujrat law Reporter 880, referred to as

no longer good law.

1.1 Under the definition of 'usufructuary mortgage' in

clause (d) of Section 58 of the Transfer of Property Act,

1882 an usufructuary mortgagee is a transfer of a right to

possession of the mortgaged property and the right to

receive the rents and profits accruing from such property.

When a lessor of a leased property creates an usufructuary

mortgage in respect of such property what he transfers under

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Section 109 of the T.P. Act as a mortgagor in favour of the

usufructuary mortgagee includes his right to possession of

such property and the right to receive the rents and profits

accruing from it. Thus Section 109 of the T.P. Act entitles

the usufructuary mortgagee from the lessor, as against the

lessee, for all rights which the lessor had against such

lessee. From this, it follows that tenanted premises, if is

mortgaged by the landlord by way of usufructuary mortgage,

the usufructuary mortgagee thereunder would become entitled

to receive the rents and profits accruing from such property

in his own right and on his own account. [479E-G]

2. It cannot be said that the findings of the lower

appellate court are not supported by the evidence on record

of the case. In fact, some of the findings are, to a great

extent, based on the facts which were admitted by the

appellant himself. Besides, the findings receive support

from the evidence given in the case by the occupiers of the

adjoining and neighbouring tenaments of the same building.

Therefore, as seen from the judgment of the appellate court,

its findings in relation to the acts of the appellant

474

and persons residing with him in the premises are based on

appreciation of ample evidence that was on record and the

same cannot be said to have been based on no evidence, or

even improper appreciation of evidence. Thus, there is no

justification to interfere with such findings of facts

recorded by the appellate court virtually affirming the

findings of fact recorded by the trial court. [484D, G-H,

485A]

3. There are no statutory definitions of 'nuisance' or

'annoyance' which-under section 13(1) (c) of the Act

constitute a ground for recovery of possession by landlord

of a premises in the occupation of a tenant. However, the

acts of the appellant or persons residing with him in the

tenanted premises which are found as acts causing nuisance

or annoyance to adjoining or neighbouring occupiers, cannot

fall short of being acts of nuisance or annoyance if regard

is had to their nature, intensity and duration and the

consequential ill-effects which might have been produced by

them on the normal living of such occupiers. They cannot

make the Court to think that they were not clear acts of

nuisance or annoyance envisaged under section 13(1) (c) of

the Act. Therefore, the courts below have rightly found

them as acts of nuisance or annoyance envisaged under

section 13(1) (c) of the Act. [485D-G]

Dhabhi Lalji Kalidas v. Ramniklal Somchand Mehta, 1975 (16)

Gujarat Law Reporter 824; Gaurishanker @ Babulal Govindji v.

Bhikhalal Chhaganlal & Ors., 1977 (18) Gujarat Law Reporter,

805, held inapplicable.

3.1. Even otherwise, the acts, said to have been committed

by the defendant and persons residing with him in the

premises when are, as stated, found by the fact finding

courts to have amounted to acts of nuisance or annoyance

entitling the plaintiff under section 13(1) (c) of the Act

to recover possession of the premises from the defendant and

when the High Court has refused to interfere with such

finding in exercise of its writ jurisdiction there could be

no justification whatever for this Court to interfere with

the same in appeal under Article 136 of the Constitution.

[485H, 486A-B]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 447 of 1982.

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From the Judgment and Order dated 6.7.1981 of the Bombay

High Court in W.P. No. 1967 of 1981.

475

B.K. Mehta and Vimal Dave for the Appellant.

U.R. Lalit, Mrs. J. Wad and Mrs. Tamali Wad for the

Respondents.

The Judgment of the Court was delivered by

VENKATACHALA, J. In this appeal by special leave, the

summary rejection by the Bombay High Court of an application

filed, under Article 227 of the Constitution, for setting

aside an eviction order made by the Court of Small Causes at

Bombay the trial court, under clause (c) of sub-section

(1) of section 13 of the Bombay Rents Hotel and Lodging

House Rates Control Act, 1947, to be referred to as 'the

Act' and upheld by the appellate Division Bench of the same

court the appellate court, is questioned.

Sudarshan Building No. 2, Shivaji Park Road No.3, Bombay-28

is a storeyed building comprised of a large number of flats

occupied by different tenants. Flat No. 10 in the Second

Floor of that building (to be referred to as 'the premises')

was in occupation of the appellant-defendant eversince the

year 1952 as its tenant under Kherodkar, the owner of the

whole of that building. In the year 1958, when Kherodkar

mortgaged with possession the said building in favour of

respondents-plaintiffs, the defendant and other tenants in

different flats of that building became tenants under

plaintiffs (usufructuary mortgages) and continued as such

tenants on payment of monthly rents to them. But, by a quit

notice dated July 3, 1967 the plaintiffs determined the

monthly tenancy of the defendant respecting the premises in

his occupation and sought to recover from him the possession

of the premises by instituting a suit in the court of Small

Causes at Bombay on the very ground on which his tenancy was

terminated, that is, that the defendant had been guilty of

conduct which was a nuisance or annoyance to the adjoining

or neighbouring occupiers. That was a ground which entitled

the landlord under clause (c) of sub-section (1) of section

13 of the Act, to recover possession of the premises from

the tenant. That ground had been based on plaintiffs'

allegations of threats of murder posed by the defendant to

the neighbouring occupiers; abuses hurled at neighbouring

occupiers by his sons; whistling at neighbouring occupiers

by the defendant's sons; spitting against the walls and in

the common staircase area of the building by the defendant's

sons; obstructions offered by the defendant, his wife, sons

and servants to the neighbouring occupiers to reach the

common terrace of the building by a staircase and removal by

476

them of aerials of radios of the tenants in the other flats

of the building,, which had been fixed above the common

terrace; obstructions offered to the landlords and their

workers to inspect the common terrace; unauthorised

errection by the defendant in the common terrace area

certain machinery and running it during nights causing

disturbance to sleep of neighbouring occupiers and also

unauthorised used by the defendant of the water in common

over-head storage tanks in the common terrace area for his

business purposes depriving other tenants of the normal use

of such water. The defendant, however, resisted the claim

for recovery of possession of the premises, made. in that

suit filing a written statement thereto, denying the

allegations of nuisance and annoyance levelled against him,

his wife, sons and servants and urging that those

allegations, even if established, did not constitute the

ground of nuisance or annoyance envisaged under clause (c)

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of sub-section (1) of section 13 of the Act, as a ground for

recovery of possession of premises from a tenent. It was

also urged therein by the defendant that the ground for

recovery of possession of premises from a tenant under

clause (c) thereof was not available to plaintiffs, for they

being usufructuary mortgagees of the building were not

'landlord' within the meaning of that expression in sub-

section (1) of section 13 of the Act as would entitle them

to recover possession of premises from a tenant. In so far

as the-common terrace, the defendant's unauthorised use of

which was complained of by the plaintiffs, the defendant

urged therein that he being a tenant of that terrace in

addition to the premises, was entitled to put it for the use

of his choice and prevent other tenants in the building from

its common use. It was further urged therein that the suit

having been instituted by the plaintiffs to pressurise the

defendant and extract from him higher rent for the premises

was vitiated by malafides. The trial court which tried the

suit, on an appraisal of the oral and documentary evidence

adduced by the parties, recorded its findings on issues

arising for its determination in that suit in favour of the

plaintiffs and against the defendant. Consequently, it

decreed the suit of the plaintiffs for recovery of

possession of the premises from the defendant. The

appellate court before which the decree of the trial court

was appealed against by the defendant, on its re-appraisal

of the evidence, affirmed the findings of the trial court

and dismissed the appeal. Feeling aggrieved by the decree

of the trial court and its affirmation by the appellate

court, the defendant impugned the same by filing a writ

petition under Article 227 of the Constitution before the

High Court of Bombay, but that writ petition was rejected by

the High Court in limine. The defendant has questioned

477

in this appeal by special leave, the correctness of the

decree of the trial court made against him for recovery of

possession of the premises by the plaintiff, the decree of

the appellate court affirming the decree of the. trial court

and the order of the High Court rejecting his writ petition.

In support of the appeal, three contentions were raised

before us by Shri B.K. Mehta, the learned senior counsel for

the appellant-defendant. But those contentions were

strongly refuted by Shri U.R. Lalit, the learned senior

counsel for respondents-plaintiffs. Taking into

consideration the serious nature of the contest, we shall

examine the merit in every-one of the contentions, rather in

detail.

First of the said contentions which was urged as a legal

contention by the learned counsel for the appellant, was

that an usufructuary mortgagee was not entitled to recover

possession of a premises from a tenant under section 13(1)

(c) of the Act pleading the ground that the tenant or any

person residing with him in such premises was guilty of

conduct which is a nuisance or annoyance to the adjoining

and neighbouring occupiers, when the expression 'Land-lord'

in section 13 of the Act cannot be said to include an

usufructuary mortgagee. Provisions in the Act in so far as

they become necessary for a proper appreciation of the said

contention could be excerpted at the outset.

Section 13(1) of the Act

"13. When landlord may recover possession.

(1) Notwithstanding anything contained in

this Act a landlord shall be entitled to

recover possession of any premises if the

Court is satisfied -

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(a)

(b)

(c) that the tenant or any person residing

with the tenant has been guilty of conduct

which is a nuisance or annoyance to the

adjoining or neighbouring occupiers.....

(d)

478

(e)

(f)

(g) that the premises are reasonably and

bona fide required

by the landlord for occupation by himself or

by any person for whose benefit the premises

are held (or where the landlord is a trustee

of public charitable trust that the premises

are required for occupation for the purposes

of the trust; or)

(h)

(hh)

(hhh)

(2) No decree for eviction shall be passed

on the ground specified in clause (g) of sub-

section (1) if the Court is satisfied that,

having regard to all the circumstances of the

case including the question whether other

reasonable accommodation is available for the

land-lord or the tenant, greater hardship

would be caused by passing the decree than by

refusing to pass it.

Where the court is satisfied that no hardship

would be caused either to the tenant or to the

landlord by passing the decree in respect of a

part of the premises, the Court shall pass the

decree in respect of such part only.

Explanation For the purposes of clause (g) of

subsection (1),

(a)

(b) the expression "landlord" shall not

include a rentfarmer or rent-collector or

estate-manager;

Section 5(3) of the Act :

"5. Definitions. In this Act unless there is

anything repugnant to the subject or context,

479

(3) "landlord" means any person who is for

the time being, receiving, or entitled to

receive, rent in respect of any premises

whether on his own account or on account, or

on behalf, or for the benefit of any other

person or as a trustee, guardian, or receiver

for any other person or who would so receive

the rent or be entitled to receive the rent if

the premises were let to a tenant, and

includes any person not being a tenant who

from time to time derives title under a

landlord and further includes in respect of

his sub-tenant, a tenant who has sub-let any

premises; (and also includes in respect of a

licensee deemed to be a tenant by section 15A,

the licensor who has given such licence;)"

Whether the expression 'landlord' in sub-section (1) of

section 13 of the Act cannot be said to include 'an

usufructuary mortgagee' where the tenanted premises is the

subject of usufructuary mortgage, is the question which

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requires our answer in the light of the provisions of the

Act. As could be seen from the definition of 'usufructuary

mortgage' in clause (d) of section 58 of the Transfer of

Property Act, 1882 the T.P. Act, an usufructuary mortgagee

is a transferee of a right to possession of the mortgaged

property and the right to receive the rents and profits

accruing from such property. When a lessor of a leased

property creates an usufructuary mortgage in respect of such

property what he transfers under section 109 of the T.P. Act

as a mortgagor in favour of the usufructuary mortgagee

includes his right to possession of such property and the

right to receive the rents and profits accruing from it.

Thus section 109 of the T.P. Act entitles the usufructuary

mortgagee from the lessor, as against the lessee, for all

rights which the lessor had against such lessee. From this,

it follows that tenanted premises, if is mortgage by the

landlord by way of usufructuary mortgage, the usufructuary

mortgagee thereunder would become entitled to receive the

rents and profits accruing from such property in his own

right and on his own account. Clause (3) of section 5 of

the Act which contains the definition of 'landlord', states

that under the Act 'landlord' means any person who is for

the time being receiving or entitled to receive rent in

respect of any premises on his own account and includes any

person

480

not being a tenant who from time to time derives title under

a landlord, unless there is anything repugnant to the

subject or context. There, comes section 13(1) of the Act

entitling landlord to recover possession of any premises

from his tenant on the ground envisaged under clause (c)

thereof, that is, the tenant or any person residing with the

tenant being guilty of conduct which is a nuisance or

annoyance to the adjoining or neighbouring occupiers, and

that section 13(1) contains nothing repugnant in its subject

or context which would disentitle an usufructuary mortgagee,

as a landlord of the tenanted premises to recover its

possession from the tenant on the said ground. Further, if

the legislative intendment was that the usufructuary

mortgagee was not to be regarded as a landlord for

recovering possession of a tenanted premises on any of the

grounds envisaged under sub-section (1) of section 13 of the

Act, it would not have omitted to state so, expressly,

particularly when it had been so stated in clause (b) of the

explanation to sub-section (2) of section 13 of the Act, as

regards 'rent farmer' or a 'rent collector' or an 'estate

manager' who would have been otherwise a landlord entitled

to recover possession of a tenanted premises from the tenant

under clause (g) of sub-section (1) of that section.

Indeed, the decision of this Court in S.B. Abdul Azeez (By

Lrs.) v. Af. Maniyappa Setty, and Others, [1988] 4 SCC 727,

throws full light on the question under consideration, for

the question decided there, is virtually identical. That

question was whether an usufructuary mortgagee was entitled

to recover possession of a premises under section 21(1)

proviso (h) of the Karnataka Rent Control Act, 1961 the

K.R.C. Act, as a landlord envisaged therein. In deciding

that question with reference to the expression 'landlord'

found in section 21(1) proviso (h) of K.R.C. Act, the

definition of that expression 'landlord' found in section

3(h) of the K.R.C. Act and the explanation to clause (4)

found in section 21(1) proviso of K. R.C. Act excluding a

rent farmer, a rent collector and an estate manager from

being a landlord for recovery of possession of a premises

from a tenant on the ground of bona fide use and occupation

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and certain provisions of the T.P. Act, this Court stated

thus:

"It, therefore, follows that the Legislature

if wanted that a mortgagee with possession

should not be equated with the owner of the

premises and should be denied the benefit of

seeking a tenant's eviction under section

21(1)

481

(h), the legislature would have undoubtedly

categorised a mortgagee with possession also

as one of the excluded class of landlords for

the purposes of section 21(1) (h) of the Act.

Obviously therefore the legislature has not

wanted a mortgagee with possession to be

excluded of his right to seek eviction of a

tenant from the mortgaged premises under

section 21(1) (h) of the Act. Thirdly, a

mortgagee with possession is enjoined by

section 76(a) of the Transfer of Property Act

to manage the property as a man of ordinary

prudence would manage it if it were his own.

As such the mortgagee's acts, if prudently

done, could bind the mortgagor even after the

redemption of the mortgage. A mortgagee with

possession, steps into the shoes of the

mortgagor and becomes entitled to all the

rights of the mortgagor and the only right

left with the mortgagor is the right of

redemption. A mortgagee with possession is

entitled to be in possession of the mortgage

property as long as it is not redeemed. If

the mortgagee with possession leases back the

property to the mortgagor, he acquires the

rights of a lessor and is entitled to enforce

the terms of the lease against the mortgagor

(vide Mathura lal v. Keshar Bai,). On account

of all these factors there can be no doubt

that a mortgagee with possession stands very

differently from other kinds of landlords en-

visaged under section 3(h) of the Act. He is

therefore entitled, as much as the owner

himself, to seek recovery of possession of the

leased premises from a tenant for his own

bona fide requirements of use."

What is said by this Court in the above decision as regards

the right of the usufructuary mortgagee to recover

possession of a premises from tenant as a landlord envisaged

therein under section 21(1) proviso (h), in our view, must

necessarily apply to a landlord envisaged in section 13(1)

of the Act. It would be so because (i) that the expression

'landlord' in section 13(1) (C) of the Act is not used in a

context different from the one in which the expression

'landlord is used in section 21(1) proviso (h) of the K.R.C.

Act, (ii) that the definition of 'landlord' and explanation

as to is not the 'landlord' are common to both the Acts and

(iii) that the legal position of an usufructuary mortgagee

under the K.R.C. Act is not different

482

from the legal position of an usufructuary mortgagee under

the Act since the rights and liabilities of an usufructuary

mortgagee concerned in both Acts are governed by the

provisions of T.P. Act. Thus it becomes clear that the

expression'landlord' in sub-section (1) of section 13 of the

Act includes an usufructuary mortgagee where the tenanted

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premises is the subject of usufructuary mortgage.

The decision in Nanalal Girdharlal and Anr. v. Gulamnabi

Jamalbhai Motorwala and Ors., 1972 (13) Gujarat Law Reporter

880 relied upon by leaned counsel for the appellant in

support of the first contention, does not lend such support.

One of the questions with which the Gujarat High Court was

concerned in that decision was whether one out of several

co- owners was entitled to maintain a suit for eviction

against the tenant under the Act. In considering that

question the Court took the view that the landlord referred

to in section 12 and section 13(1) of the Act was not a

landlord as defined in section 5(3) but was a landlord who

was entitled to possession of the premises on a

determination of the tenancy under the ordinary law of

landlord and tenant, that is, under section 106 of the T.P.

Act. It is this view which was sought to be made use of by

learned counsel for the appellant to contend that the

landlord under section 13(1) of the Act cannot be an

usufructuary mortgagee. But, the said view of the High

Court that a landlord referred to under sections 12 and

13(1) of the Act is a landlord who is entitled to possession

of premises on determination of the tenancy under section

106 of the T.P. Act, itself cannot now be good law because

of the nine-Judges' Bench decision of this Court in V.

Dhanapal Chettiar v. Yesodal Ammal, A.I.R. 1979 SC 1745,

where the scope of the provisions of sections 5, 12 and 13

of the Act in the context of section 106 of the T.P. Act is

considered and held otherwise, thus :

"Adverting to the provisions of the Bombay

Rents, Hotel and Lodging House Rates Control

Act, 1947 it would be found from the

definition of section 5 that any person

remaining in the building after the

determination of the lease is a tenant within

the meaning of clause (11). Section 12 of the

Bombay Act says that the landlord shall not be

entitled to the recovery of possession of any

premises so as long as the conditions

mentioned in sub-section (1) are fulfilled nor

any suit for recovery of possession shall be

483

instituted by a landlord against a tenant on

the happening of the event mentioned in sub-

section (2) until the expiration of one month

next after the notice is served on the tenant

in the manner provided in section 106 of the

Transfer of Property Act, as required by the

said sub-section. Section 13 provides that a

landlord may recover possession on certain

grounds. Is it not plain then that on the

happenings of the events or on the fulfilment

of the conditions mentioned in sections 12 and

13 etc. the landlord becomes entitled to

recover possession from the tenant, otherwise

not. It will bear repetition to say that

under the Transfer of Property Act in order to

entitle the landlord to recover possession

determination of the lease is necessary as

during its continuance he could not recover

possession while under the State Rent Act the

landlord becomes entitled to recover

possession only on the fulfilment of the

rigour of law provided therein. Otherwise

not. He cannot recover possession merely by

determination of tenancy. Nor can he be

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stopped from doing so on the ground that he

has not terminated the contractual tenancy".

The first contention urged in support of the appeal that an

usufructuary mortgagee of tenanted premises cannot file a

suit for recovery of its possession from the tenant under

section 13(1) (c) of the Act does not, therefore, merit

acceptance and is rejected.

The second contention of the learned counsel for the

appellant defendant relates of correctness of the findings

of the appellate court recorded respecting acts of nuisance

and annoyance constituting the ground for recovery of

possession of premises by the plaintiffs from the

defendants. According to the learned counsel, those

findings, not having been based on the evidence on record,

become unsustainable. We are unable to find any merit in

this contention. The findings as to the acts of nuisance

id annoyance attributable to the defendant and the persons

who were residing in the premises are (i) that the

defendant, who was a tenant in a premises (tenament) in the

storeyed building, erected a Rangeen Min (Textile Printing

Mill) on the terrace of the storeyed and ran it during

nights so as to make the occupiers of the adjoining and

neighbouring

484

tenaments in the storeyed, residential building suffer the

vibrations and noise in the building arising on account of

the running of the Mill and loose their quiet and sleep

during night; (ii) that the defendant unauthorisedly

utilised the water stored in the common over-head tanks on

the terrace, meant for domestic use of all the occupiers of

the tenaments in the building, for running his run Rangeen

Mill a non-domestic purpose; (iii) that the defendant and

the persons residing with him in the premises had often

removed the radio aerials and T.V. antenas of the occupiers

of the adjoining and neighbouring tenaments which had been

fixed above the common terrace of the building; (iv) that

the defendant and the persons residing in the premises were

wrongly preventing the plaintiffs and their workers in

reaching the common terrace for repairs of radio aerials,

T.V. antenas, telephone lines and the like of the occupiers

of the neighbouring tenaments in the building by blocking

its staircase.

These finding of the lower appellate court, it cannot be

said, are not supported by the evidence on record of the

case. In fact, some of the findings are, to a great extent,

based on the facts which were admitted by the defendant

himself. Besides, the findings receive support from the

evidence given in the case by the occupiers of the adjoining

and neighbouring tenaments of the same building. The

defendant and the persons residing with him in the premises

have committed some of the acts respecting which the

aforesaid findings are recorded by the appellate court

because of the defendant's unfounded claim that he had taken

the terrace on lease independently of the premises in which

he was an occupant and as such was not only entitled to its

exclusive use but also had the right to prevent the

neighbouring occupiers of the tenaments in the building from

its use. The trial Court as well as the appellate court, on

examining the claim put-forth by the defendant, have found

on the basis of material on record, that it was a false

claim and the defendant had not taken on lease the disputed

terrace, as was pleaded by him. Therefore, as seen from the

judgment of the appellate court, its findings in relation to

the aforesaid acts of the defendant and persons residing

with him in the premises are based on appreciation of ample

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evidence that was on record and the same cannot be said to

have been based on no evidence, or even improper

appreciation of evidence as contended for. Thus, we are

unable to see any justification in this Appeal by Special

Leave, to interfere with such findings of facts recorded by

the appellate court virtually affirming the findings of fact

485

recorded by the trial court. The second contention raised

in support of the appeal must, therefore, fail. It is

accordingly rejected.

The third and the last contention urged in support of the

appeal was that the acts found to have been committed by the

appellant-defendant and the persons residing with him in the

premises, even if are true, they could not have been

regarded as acts amounting to nuisance or annoyance forming

a ground for recovery of possession of a premises from the

tenant under section 13(1) (c) of the Act. In support of

the said contention, reliance was placed on decisions of the

Gujarat High Court in Dhabhi Lalji Kalidas v. Ramniklal

Somchand Mehta, 1975 (16) Gujarat Law Reporter, 824 and

Gaurishanker @ Babulal Govindji v. Bhikhalal Chhaganlal &

Ors., 1977 (18) Gujarat Law Reporter, 805. This contention,

in our view, again, is devoid of merit. The decisions

relied upon also do not support the contention.

There are no statutory definitions of 'nuisance' or

'annoyance' which under section 13(1) (c) of the Act

constitute a ground for recovery of possession by landlord

of a premises in the occupation of tenant. In the case with

which we are concerned, the acts of nuisance or annoyance

complained of are committed by the tenant and persons

residing with him in the premises which is a tenament (flat)

lying amidst other tenaments (flats) of the one and same

storeyed building. The acts of the defendant or persons

residing with him in the tenanted premises which are found

as acts causing nuisance or annoyance to adjoining or

neighbouring occupiers, cannot fall short of being acts of

nuisance or annoyance if regard is had to their nature,

intensity and duration and the consequential ill-effects

which might have been produced by them on the normal living

of such occupiers. Further, when the particular acts of the

defendant or persons residing with him in the premises

(flat) of a storeyed building, said to have caused nuisance

or annoyance to the occupiers of adjoining or neighbouring

occupiers of tenaments (flats) in the very same storeyed

building are seen, they cannot make us think that they were

not clear acts of nuisance or annoyance envisaged under

section 13(1) (c) of the Act because of the intolerable

inconveniences, sufferings, humiliations which must have

been caused to the adjoining or neighbouring occupiers, due

regard being given to the locality of the storeyed building,

the class of the people living in the tenAments of the

storeyed building and the nature of living to which they

486

were accustomed. Even otherwise the acts, said to have been

committed by the defendant and persons residing with him in

the premises when are, as stated, found by the fact finding

courts to have amounted to acts of nuisance or annoyance

entitling the plaintiff under section 13(1) (c) of the Act

to recover possession of the premises from the defendant and

when the High Court has refused to interfere with such

fInding in exercise of its writ jurisdiction there could be

no justification whatever for us to interfere with the same

in this appeal under Article 136 of the Constitution.

The decision in Dhabhi Lalji Kalidas v. Ramniklal Somchand

Mehta, (supra) relied upon to support the third contention

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is a case decided by Single Judge of the Gujarat High Court.

The learned Single Judge who examined in that case the

question whether the use by washerman, who was tenant of a

premises, some chemicals for washing clothes in a tenanted

premises could have amounted to act of nuisance or annoyance

to adjoining or neighbouring occupiers as entitling the

landlord to recover possession of tenanted premises under

section 13(1) (c) of the Act, held that the ill-effects

produced on adjoining or neighbouring occupants cannot be

found out in the absence of evidence of chemical experts and

therefore, the ground for recovery of possession of tenanted

premises under section 13(1) (c) of the Act, was

unavailable. We are unable to see, how this decision could

help the contention of the appellant under our considera-

tion. The decision in Gaurishanker (supra) relied upon to

support the third contention is again that of a Single Judge

of the Gujarat High Court. It was a case where the learned

Judge was concerned with the question whether a quarrel in

the household of a tenant could be a ground for eviction of

a tenant under section 13(1) (c) of the Act. The learned

Judge, who held that quarrels in a domestic household of a

tenant can never constitute a nuisance or annoyance within

section 13(1) (c) of the Act pointed out that nuisance or

annoyance contemplated under section 13(1) (c) of the Act as

ground for eviction of tenant from a premises must be of a

serious character in nature, intensity and frequency. We

do, not see how this decision could advance the contention

of the appellant now under consideration. In fact, in the

case on hand, we have held that the courts below, having

regard to the nature, intensity and duration of the acts

complained of and their HI-effects on the normal living of

adjoining or neighbouring occupiers have rightly found them

as acts of nuisance or annoyance envisaged under section

13(1) (c) of the Act.

487

Hence, the third and the last contention urged in support of

the appeal, being also devoid of merit, is rejected.

In the result, this Appeal fails and is dismissed with

costs. The advocate's fee payable by the appellant-

defendant to respondents-plaintiffs is fixed at Rs. 2,000.

T.N.A. Appeal dismissed.

488