Narpatchand
A. Bhandari Vs. Shantilal Moolshankar Jani & Anr [1993] INSC 140 (18 March 1993)
Venkatachala
N. (J) 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.
HEAD NOTE:
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, 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 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]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 447 of 1982.
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) 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 - (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 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 there under 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 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 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 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 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 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.
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