Gujarat High Court
Majoor Mahajan Mandal Navsari vs Sitaben Mangubhai on 1 May, 2025
NEUTRAL CITATION
C/CRA/195/2004 JUDGMENT DATED: 01/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 195 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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MAJOOR MAHAJAN MANDAL NAVSARI & ANR.
Versus
SITABEN MANGUBHAI & ORS.
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Appearance:
MR AK CLERK(235) for the Applicant(s) No. 1,2
DECEASED LITIGANT THROUGH LEGAL HEIRS/
REPRESTENTATIVES for the Opponent(s) No. 5
DELETED for the Opponent(s) No. 1,4
MR DEEP D VYAS(3869) for the Opponent(s) No. 5.1,5.2,5.3,6.1,6.2,6.3
RULE SERVED for the Opponent(s) No. 2.3,3,6
UNSERVED EXPIRED (R) for the Opponent(s) No. 2.1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/05/2025
ORAL JUDGMENT
1. This landlord's Revision Application under Section 29 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short "the Rent Act")is against judgment and decree passed by First Appellate Court in Civil Application whereby the said appeal has been allowed and Judgment and Decree passed by the Trial Court is quashed and set aside.
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2. In order to properly appreciate the submissions made by learned advocate Mr.A.K. Clerk for the landlords, the relevant facts giving rise to the present revision application are stated hereinafter briefly.
3. The plaintiff landlord sought for possession of the suit premises from the defendant tenant on the following grounds
(i) causing damage to the rented premises, (ii) the defendant/tenant has made construction under the suit property (iii) the defendant/tenant has been guilty of conduct which is a nuisance and annoyance to the adjoining or neighbouring occupier, the landlord requires the premises for his reasonable and bonafide and that the premises are reasonably and bonafidely required by the landlord for occupation by himself.
4. It is the case of the plaintiff that the plaintiff no.1 is the owner of the suit property and plaintiff no.2 is the Secretary of plaintiff no.1 and has authority to file the suit. At the time of filing of the suit, the plaintiff has stated that the original defendant died since a very long time and that the legal heirs of the tenant were the defendants in the said suit and the defendants have encroached the adjoining land of municipal house no.474/A from the northern and southern side illegally without taking permission of the plaintiff and it is a case of the plaintiff that after making encroachment upon the adjoining land, the defendants have made pakka/kacha construction, and Page 2 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined thereby made an additional room and have damaged the suit property by removing the tin roof and fixing the cement roof without any permission from the landlord.
5. It is the case of the plaintiff that the defendants have broken the lock of tin shade room on the eastern side and the defendants have entered the room and removed the account books and other goods of the landlord, and taken possession of the above premises and had started residing in the premises and thereby the defendants have created nuisance and annoyance towards the plaintiff and that the action of the defendants making encroachment of the premises is contrary to the conditions of the tenancy rights and on that ground, the plaintiffs have sought for possession of the suit premises. The defendant has appeared and filed written statement vide Exhibit-14, the Trial Court has framed issues vide exhibit 15 as under:
"(1) Whether the Plaintiff proves that they are a Labour Union and the Plaintiff being the Secretary of the same, has the power to file suit on behalf of the Union?
(2) Whether the Plaintiff proves that the suit property has been rented to the Respondents subject to certain conditions?
(3) Whether the Plaintiff proves that the Respondents have violated the rent rules by carrying out permanent and temporary construction without obtaining any consent?Page 3 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025
NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined (3-A) Whether the Plaintiff proves that they are entitled to receive the possession of the rented property due to nuisance and annoyance as prescribed under, (1) Section 13(1) and (2) 13(1) C of the Rent Act?
(4) Whether the Plaintiff proves that the Respondents broke open the hut possessed by the Plaintiff, located on the East from the suit property and they have unlawfully occupied the same after removing account books and valuable goods therefrom?
(5) Whether the Plaintiff is entitled to get the possession of the suit property considering the issue that the same is genuinely required for the activities of the Union?
(5-A) Whether the Respondent proves that as per Section-28 of the Bombay Rent Act, this Court does not have jurisdiction to conduct this suit?
(6) What order and decree?"
6. After taking into consideration the oral and documentary evidence and giving finding on all the issues that have been framed vide. Exhibit-15 the Trial Court gave a finding that the suit property was given on rent to the defendant's father and the Trial Court has observed that the plaintiff has failed to prove that the defendants have made any pakka or kacha construction against the provisions of law and the Trial Court came to a finding that the defendants are guilty of conduct, Page 4 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined which amounts to nuisance and annoyance, entitling the landlord-plaintiff to recover possession of the premises. With respect to the issue whether the plaintiff required the suit property for bonafide requirement, the Trial Court held the said issue in negative.
7. Therefore, the Trial Court decreed the suit on the finding, more particularly Section 13(1)(c) of the Bombay Rent Act and with respect to the other issues, that were raised by the landlord for claiming eviction of tenant from the suit premises were rejected by the Trial Court. Therefore, the Trial Court has decreed the suit only under Section 13(1)(c) of the Bombay Rent Act. The tenants filed Regular Civil Appeal No.50 of 1995, and after appreciating the evidence on record, the First Appellate Court allowed the said appeal and set aside the judgement and decree passed by the Trial Court in Regular Civil Suit No.136 of 1985 and aggrieved by the said judgement and decree the present Civil Revision Application is filed.
8. Learned advocate Mr.A.K.Clerk for the petitioner landlord has mainly argued that the Appellate Court could not have reversed the findings of the Trial Court as the defendant- tenants are guilty of conduct which is a nuisance to the landlord.
9. In order to decide whether landlord is entitled to the benefit of Page 5 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined Section 13(1)(c) of the Bombay Rent Act, it is necessary to refer to the material part of the said section. Section 13(1)(c) in so far as it is material for the purpose of this discussion reads as under:
"13(l)Notwithstanding anything contained in this Act [but subject to the provisions of Section 15] a landlord shall be entitled to recover possession of any premises if the Court is satisfied-
13(l)(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 occupier, or has been convicted of using the premises or allowing the premises to be used for immoral or illegal purposes; or
10.Therefore, in order to attract Section 13(1)(c) of the Bombay Rent Act, the plaintiff landlord shall have to prove that the conduct of the tenant or any person residing with the tenant is offending and that the said conduct amounts to annoyance or Page 6 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined nuisance to the adjoining or neighbouring occupier. Learned advocate for the petitioner has mainly contended that looking to the record and proceedings, it can be clearly established that, the property which is municipal house no.474/A was let to the original tenant i.e. father of the defendants and that the tenant was permitted only to use the said property but as per the facts established by the plaintiff before the Trial Court, it is an admitted fact that the defendant tenants have encroached the adjoining property of the plaintiff and have started to reside in the said premises with their family members. It has also been argued by the learned advocate for the petitioner that as per the record of Assessment Register kept by Navsari Nagar Palika produced vide exhibit 45, 46 and 47, it clearly shows that the municipal house number 474/A was let out to the original tenant and which consist of 10 x 17 tin shade, which covers one room, kitchen, and otla only and the other adjoining property which is numbered as municipal house no.474/A/1, which also consist one room, kitchen and otla was never let out to the original tenant and the said premises was for the use of the petitioner landlord.
11.Learned advocate for the petitioner-landlord has also has argued that the property i.e. 474/A/1 is a separate property and was never given on rent to the original tenant and from the documentary evidence produced vide exhibit 45, 46 and 47, which is produced from the assessment register of Navsari Nagar Palika, it can be clearly established that municipal Page 7 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined house no.474/A was only let to the original tenant and other portion was never let the original tenant.
12.Learned advocate for the petitioner landlord has also argued that even as per the admission of defendants witness, the original tenant has encroached upon the adjoining portion of the plaintiff and the defendants have not produced any documents to show that the adjoining property i.e. municipal house no.474/A/1 was also let to him and therefore, the petitioner-landlord had proved that the defendants have encroached upon the adjoining portion and they have started to reside in the said portion without the consent of the landlord and therefore, even as per the panchnama produced at exhibit 77, it can be clearly established that the original tenant has encroached upon the adjoining property and residing in said the property with his family and therefore, the Trial Court has rightly decided the said issue as the act of defendent encroaching upon the length of adjoining land amounts to nuisance and announces on the plaintiff and after taking into consideration the dispute between the parties, the Trial Court had rightly decreed the suit under the provisions of Section 13(1)(c) of the Bombay Rent Act. It has been argued by the learned advocate for the petitioner landlord that the conduct of the original tenant, encroaching upon the adjoining land amounts to nuisance. And therefore, the encroachment that has been created by the tenant amounts to annoyance nuisance to the petitioner-landlord. It has been argued by the learned Page 8 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined advocate for the petitioner landlord that after taking into consideration the sufficient evidence on record, the Trial Court had rightly decreed the suit under the provisions of Section 13(1)(c) of the Bombay Rent Act and the Appellate Court could not have reversed the said finding of the Trial Court. Learned advocate for the petitioner landlord has relied on AIR 1996 SC 532, 1995 2 GLR 1320, 2010 3 GLH 569, therefore, the learned advocate for the petitioner landlord has submitted that looking to the facts of the present case and the fact that the petitioner landlord has proved that the tenant is guilty of conduct which amounts to nuisance and annoyance to the adjoining or neighbouring occupier and therefore, is entitled for possession of the suit premises and therefore the judgement and decree passed by the Appellate Court is required to be quashed and set aside and the judgement and decree granting possession of the suit property under the provisions of Section 13(1)(c) of the Bombay Rent Act, granted by the Trial Court is required to be confirmed.
13.Learned advocate for the respondent-tenant has mainly argued that the Trial Court could not have passed a decree under the provision of Section 13(1)(c) as the original tenant i.e. father of the defendants and the defendants are not guilty of any conduct, which amounts to nuisance or annoyance to the adjoining or neighbouring occupier. It has been argued that the petitioner landlord has failed to prove that the respondent tenants have trespassed and encroached on the adjoining land.
Page 9 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined Moreover, the witness of the petitioner landlord has also not proved the said fact. It has been argued by the learned advocate for the respondent tenant that in the evidence on behalf of the petitioner landlord vide exhibit 83, the said witness has not proved that he was present when the suit property was given on rent to the respondent tenant, the said witness has also further said that he had no personal knowledge as to the contents and averments in the plaint and as against that, the oral evidence of the defendant which has been examined at exhibit 86, wherein he has specifically deposed the area, the extent, and the nature of property which had been used and in occupations since the time of taking the property on rent and has denied the allegation of trespassing in the suit property and the respondent tenants had taken a stand before the Trial Court that the respondent tenants are residing in the adjoining portion since more than 30 years and as and when occasion arisen, repairing work was being done in the rented premises and therefore it cannot be established that at the time of drawing the panchnama vide exhibit 77, the repairing work or construction work was going on at the adjoining land. Learned advocate for the respondent tenant has also argued that there is no evidence of encroachment, except for the panchama produced vide exhibit 77 and 78, and that cannot be considered as an evidence to prove that the respondent tenants have encroached upon the adjoining land and therefore, the petitioner landlord having miserably failed to prove all the grounds mentioned in the suit for decree of Page 10 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined eviction and the fact that the Trial Court has also come to the finding that the respondent tenants have not made any pakka or kacha construction in the suit property, and the said finding has become final as no appeal has been filed by the petitioner landlord against the said finding, therefore also, it cannot be said that the conduct of the respondent tenant amounts nuisance or annoyance to the adjoining or neighbouring occupier.
14.Learned advocate for the respondent tenant has also argued that the petitioner landlord has also not established that the petitioner landlord and/or the adjoining or neighbouring occupier have ever complained of respondent tenant guilty of conduct of nuisance or annoyance. It has also not come on record that the petitioner landlord is adjoining or neighbouring occupier and therefore, the question of granting the decree of eviction on the said ground would not arise.
15.In view of the said fact it has been argued that the findings that have been arrived at by the First Appellate Court does not require any interference and therefore, the present Civil Revision Application is required to be dismissed.
16.Having heard learned advocates for the parties and on perusal of the documentary evidence and the judgement and decree passed by the Trial Court and the First Appellate Court, the fact remains that whether the landlord has proved that the Page 11 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined defendants are guilty of conduct, which is nuisance or annoyance to the adjoining or neighbouring occupier, in this regard, the only ground that the petitioner landlord has taken is with respect to the respondent tenant occupying the adjoining property i.e. 474/A/1 and the fact that the petitioner landlord has tried to prove the said fact by documentary evidence i.e. exhibit 45, 46 and 47, which is assessment register of Navsari Nagar Palika and has tried to prove that municipal house no.474/A and 474/A/1 are two different separate adjoining properties and that the property i.e. municipal house no.474/A was only let to the tenant and the respondent tenants have encroached on municipal house no.474/A/1 and the same amounts to nuisance and annoyance to the petitioner landlord and that the respondent tenants are using municipal house no.474/A/1 as an additional room and the said fact, according to the petitioner landlord amounts to nuisance or annoyance to the adjoining or neighbouring occupier and in the present case, it is the landlord himself who is the adjoining or neighbouring occupier and therefore, the landlord has sought for a relief for possession of the suit property under the provisions of Section 13(1)(c) of the Bombay Rent Act. The fact remains that the landlord himself has not proved the fact that respondent tenant was not occupying the said premises i.e. municipal house no.474/A/1, the fact also remains that there is no evidence coming forward from the petitioner landlord that since the inception of tenancy rights, the respondent tenant is not occupying municipal house Page 12 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined no.474/A/1, the fact also remains that the landlord has not proved the fact that any pakka or kacha construction has been made in the adjoining land, the only document on which the petitioner landlord is relying on is the Court Commissioner's report produced at exhibit 77 and 78, which, in my opinion, cannot prove the fact that construction has been made in the adjourning land i.e. municipal house no.474/A/1. Even the fact that the Trial Court has come to a conclusion that no pakka or kacha construction has been made in the suit property and the said order having not been challenged by the petitioner landlord, the same attains finality and therefore, it cannot be said that the landlord has proved that the tenant has made any construction at the adjoining land.
17.Section 13(1)(c) of the Bombay Rent Act can be divided into two grounds on which the landlord is entitled for possession of the suit premises, if the court is satisfied that (a)The tenant or any person residing with him has been guilty of nuisance or annoyance to the neighboring or adjoining occupiers, and (b) the tenant or any person residing with him has been convicted or using the premises or allowing the premises to be used for immoral or illegal purposes. In the facts of the present case, the case of the plaintiff is pleaded to fall under clause(a). It is true that every case of nuisance has to be decided on its own facts and there is no straight jacket formula that can be laid down as nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of his property and the same Page 13 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined amounts to a conduct of one party and therefore the same amounts to interference with one's enjoyment and anything that dis-compasses or injuriously affects the other person, moreover, so long as the things or property is reasonably used, there cannot be a complain for disturbance, and only if the conduct of the respondent tenant becomes a nuisance, when it unduly interferes with the petitioner landlords comfortable and convenient enjoyment of his property.
18.In the present case, there is neither any criminal complaint of nuisance or annoyance against the respondent tenant, and the only case that has been put forward by the petitioner landlord is that the respondent tenant has encroached on the adjoining land and the same amounts to nuisance and annoyance. In the present case, the petitioner landlord has also not established that the petitioner landlord is adjoining or neighbouring occupier though the cause title clearly states that the petitioner landlord has an office in the suit premises but the fact has not been established by the petitioner landlord in the evidence produced by the petitioner landlord. But even otherwise, the fact remains that the petitioner landlord has not been able to prove the fact that in the adjoining property that the respondent tenant has encroached upon 474/A/1, and there are no documentary evidence to support the fact that the conduct of the respondent tenant is such which amounts to causing nuisance. The judgements on which learned advocate for the petitioner landlord relies on in AIR 1996 SC 532 in case of Page 14 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined Patel Chandulal Trikamlal and Others Vs. Rabari Prabhat Harji and Another in para 6 it is held as under:
"6. It is contended before us that the above term in the rent note cannot be considered as a term of the tenancy because it does not relate to the land in respect of which the tenancy was created. It relates to the adjoining land. Hence at the highest, it is a personal obligation cast on the tenant. We find it difficult to accept this contention. Clearly the tenancy of land was given for the purpose of tethering cattle. The tenancy was of a portion of an open piece of land which belonged to the landlord. Looking to the nature of the use to which the open land was to be put by the tenants, it was provided in the rent note that the tenant will use only the portion of the open land which was given to him and will not use the open land lying beyond the limits of the land given to him on tenancy. The clear intention of the parties was to ensure that the tenant only used the land demised to him and would not allow his cattle to stray beyond the demised land. For the same reason, it was also provided in the rent note that the tenant would fence the land. In this context, this is a condition which is imposed on the tenant as a condition of his tenancy. Looking to the purpose for which the tenancy was given, this is not just a Page 15 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined personal obligation cast on the tenant not to trespass upon the adjacent land. The landlord out of his entire land, has given only a portion of the land to the tenant on condition that he confines his cattle to the demised land and does not allow his cattle to trespass over the owner's land. Such a condition is not severable from the terms of the tenancy looking to the nature of the tenancy which was granted. It relates to the manner in which the demised land was to be used by the tenant. Both the fencing and the obligation not to go beyond the fencing or the demised land have to be read together. Hence the obligation contained in the rent note is not a personal obligation of the respondents. It is an obligation which has been cast on them in their capacity as tenants of an open piece of land which was given to them for tethering cattle. It is directly linked with the manner in which the demised land is to be enjoyed by the tenants and is an integral part of the rent note."
19.In case of Smt. Laxmiben Mavjibhai & Anr. V. Shankarbhai Mulubhai, 1995 2 GLR 1320, para nos.12 to 24 it is held as under:
"12. The second ground on which the eviction of the tenant is sought is that the tenant has been guilty of conduct which is a nuisance to the landlord, he being the adjoining or neighbouring occupier. In Page 16 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined order to decide whether the landlord is entitled to benefit of Section 13(l)(c) of the said Act it is necessary to refer to the material part of the said section. Section 13(l)(c) in so far as it is material for the purpose of this discussion reads as under:
13(l)(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, or has been or has been convicted of using the premises or allowing the premises to be used for immoral or illegal purpose.
13. It may be mentioned that identical provision is also enacted in various State legislations. Under Calcutta Rent Restriction Act in Section 12 more or less identical provision is enacted. Section 12(l)(c) empowers the landlord to seek eviction of the tenant where the tenant has been guilty of conduct which is annoyance or nuisance to an occupier of adjoining or neighbouring premises. Similar provision is also to be found in Mysore House Rent and Accommodation Control Act. Section 8(2)(vi) inter alia provides that the landlord shall be entitled to possession of premises if the tenant or any person residing with him has been guilty of such acts and conduct amounting to annoyance or nuisance to the adjoining or neighbouring occupier or has been guilty of using the house for immoral or illegal purposes. In almost all the State Legislations Page 17 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined language employed is in pari materia and conduct of the tenant as would cause annoyance or nuisance to the adjoining or neighbouring occupier is a ground for seeking eviction of the tenant.
14. In order to attract the provisions of this clause the landlord has to establish:
(i) the offending conduct of the tenant or any person residing with the tenant.
(ii) that such conduct was causing annoyance or nuisance to the adjoining or neighbouring occupier.
15. It may be mentioned at the outset that the legislature has while providing ground for eviction of tenant referred to the conduct of the tenant which may amount to "annoyance" or "nuisance". The use of the two words is significant. If the two words carry same meaning the legislature is guilty of tautology. The legislature has advisedly used two words as in my opinion they do not carry the same meaning and have different legal connotations. It is by now well accepted that the word "annoyance" has different meaning than the word "nuisance". In the case of Chandrakant Madhavrao Bhaiber v. Gajendrakumar Sunderlal Shah reported in (1971) XII GLR 551 Justice A.D. Desai was called upon to decide the question of applicability of Section 13(l)(c) of the said Act where the premises were let out for residence to the opponent. The opponent used the premises Page 18 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined for boarding his workers, i.e., to provide his workers a shelter as a part of his business activities. From evidence it was found that there were 31 persons using one common latrine and bath room with the result the family members of other tenants including the females had to stand in queue which caused inconvenience to the tenants residing on the first and second floors. It was in the context of aforesaid situation that the learned single Judge was called upon to decide the question as to whether the conduct of the tenant in allowing his workers to stay in the premises amounted to causing annoyance and/or nuisance. It was in this context that the learned single Judge referred to the dictionary meaning of the words "annoy" and "annoyance" and he observed as under:
"The meaning of the word "annoy" as stated in the Short Oxford Dictionary, third edition is "to be odious or a cause of trouble; to affect so as to ruffle, trouble, vex, to molest, injure, to derange, affect injuriously".
The word "annoyance" is stated to mean an action of annoying, molestation, or state of feeling caused by what annoys. The meaning of word "annoy" as given in the Webster's New Twentieth Dictionary, IInd edition, is to "irritate, to bother or vex, as by continued or repeated acts or to "harm, injure or to molest, to make angry" and the word "annoyance" is stated to mean that which annoys. The word "annoyance", therefore, indicates such conduct of a person which would harm, injure or irritate other persons or to make them angry. The word "annoyance" as used in Clause (c) of Sub- section (1) of Section 13 of the Act includes an act which interferes with the peaceful and reasonable Page 19 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined enjoyment of the premises by the adjoining or neighbouring occupiers. In Tok Healty V. Benhan 40, Chancery Division page 80 the Court had to consider the meaning of the word "annoyance" as used in a covenant of lease. The facts of the case were that a dwelling house was rented out. The premises were used for keeping outdoor patients for treatment of throat, nose, ear, skin, eye, fistula and other diseases and the question which arose for consideration of the Court was whether the use of the premises for the aforesaid purposes caused annoyance to the neighbours. Lindley, L.J. made the following observations:
"Now what is the meaning of "annoyance"? The meaning is that which annoys, that which raises objections and unpleasant feelings. Anything which raises objection in the minds of reasonable men may be an annoyance within the meaning of covenant'."
16. In unreported decision of this Court, the learned single Judge while deciding C.R.A. No. 481 of 1969 dated 11-7-1973 was called upon to decide the question as to whether the conduct of the tenant who has put up table, chairs and other articles on otta of the godown of the landlord which was not leased to him despite objection of the landlord can be said to amount to annoyance to the landlord. In the aforesaid fact situation, by reference to rent note a finding was reached that the tenant was given on lease only a shop which was to the North of the godown and that otta of the adjoining godowns was not a part of leased property given under the rent note. Tenant had only right of passage over the otta of the adjoining godowns. Tenant firstly pleaded that adjoining otta was given on lease and then pleaded in the alternative that he has Page 20 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined right to use said otta. It was also found that the tenant was using otta of the godowns for keeping his articles including table, chairs and despite the request of the landlord to remove the table, chairs, and other articles the tenant refused to do so and even admitted in the Court that he refused to remove the table, chairs and other articles which he was keeping on the otta. In this context finding was reached that the landlord was justified in asking the tenant to remove table, chairs and other articles from the otta and not to occupy the same and that the tenant was not justified in his conduct in persisting with using of otta. Such conduct whether would amount to causing annoyance to the landlord was the moot question before S.N. Patel, J. in the aforesaid revision application. After referring to the decision of A.D. Desai, J. in Chandrakcmt Madhavrao Bhaiber (supra) the learned Judge took the view that the conduct of tenant in placing table, chairs and other articles on otta which was not leased to him and in persisting to use the same despite request of the landlord to remove the same amounted to annoyance within the meaning of the said term so as to incur liability of eviction under Section 13(l)(c) of the Bombay Rent Act.
17. The aforesaid unreported decision of the learned single Judge of this Court is squarely attracted to the fact situation obtaining before this Court in this case. It must be noted that the two Courts have concurrently found that the defendant-tenant was not given on lease the parsal or backyard portion. He was also not given on lease the bath room situated in said backyard. It is also concurrently found by two Courts that despite this clear position, the defendant persisted to make use of parsal or backyard not only by storing the goods and Page 21 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined articles but also by placing and washing bicycles of his shop, by keeping his cot or charpoy in the open space for sleeping there and also by placing water-heater by burning cow-dung cakes causing emission of black smoke which necessarily would cause annoyance to all other tenants and neighbouring occupiers, landlord being one of them. The defendant initially took up a plea that he was entitled to make use of said open parsal or backyard and that he was entitled to use the same since the time of his tenancy. In the alternative, he pleaded that he was entitled to make permissive use of the open space and bath room. At the time of his oral deposition he came out with the theory that he was exclusively using the bath room but when he was subjected to cross-examination and in the light of oral evidence of the plaintiff two Courts have concurrently found that the tenant was not in the exclusive use of bath room and that the landlord had the right to use the bath room and if at all the tenant has used the bath room he had used the same by the grace of the landlord. The tenant was requested by the landlord not to use the parsal or backyard portion for storing his articles, for placing his bicycles, for keeping his cot or charpoy and for sleeping there and for placing his water-heater and burning wooden pieces or cow-dung cakes. Despite repeated requests made to the tenant not only he did not stop the use of open space or parsal or backyard, but he persisted for placing his cot or charpoy and used the same for sleeping purpose. He also used the parsal for storing his kits and articles. He also continued to use the open place placing bicycles and for washing bicycles. He persistently continued his conduct despite the knowldege on his part that he was not entitled to make use of osri, parsal or backyard for sleeping purpose, for placing his charpoy or cot, for Page 22 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined storing his goods and articles and for using his water- heater by use of wooden pieces or cow-dung cakes. It would not be out of place to mention that the landlord was obliged to file separate suit for declaration and injunction being Rent Suit No. 785 of 1972 for declaring that the tenant was not entitled to use the open place, parsal, osri or backyard for keeping his cot or charpoy, for storing his articles or goods and for keeping the water-heater and using the same by burning wooden pieces or cow-dung cakes. Such suit instituted by the landlord came to be decreed in favour of landlord and against the tenant and the Court also granted permanent injunction restraining the tenant permanently from making use of osri, parsal or backyard portion by placing his cot or charpoy for sleeping purpose, by storing his goods or articles, by placing his water-heater and using the same. It may be noted that such a decree of declaration and permanent injunction granted by the trial Court has become final as the defendant-tenant did not carry the matter in appeal and the said position is accepted before this Court also. With these findings which are concurrently reached by two Courts the question that is required to be answered is whether the ratio of the decision of the learned single Judge (S.N. Patel, J.) of this Court in C.R.A. No. 481 of 1969 would apply to the fact situation obtaining before this Court or not. In my opinion, the answer must be in the affirmative, and it shall have to be held that persistent conduct of the defendant-tenant in using the osri, parsal or backyard portion as well as bath room by placing his cot or charpoy for sleeping purpose, by storing his goods or articles in such open place, by keeping his water-heater and using the same by burning wooden pieces and/or cow-dung cakes resulting into emission of black smoke would Page 23 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined undoubtedly result into annoyance to the neighbouring occupiers including the other tenants and landlord himself. The landlord has on number of occasions in the spirit of "live and let live" requested the tenant not to make such use as it was causing lot of annoyance to him and to other neighbouring occupiers, but the tenant persisted in his conduct. In the case before S.N. Patel, J. the Court was called upon to decide the question as to whether the conduct of the tenant in putting up table, chairs and other articles on otta of the godown of the landlord which was not leased to him despite objection of the landlord can be said to amount to annoyance to landlord. In the said case, the finding was reached by two Courts including the High Court that the tenant was not leased out otta and he has no right to use the said otta for keeping his articles. Similar is the position before this Court. Concurrently finding is reached by two Courts that the tenant was not leased out the osri, parsal or backyard portion nor was he entitled to use the same for keeping his cot or charpoy for sleeping there, for storing his goods and articles and for keeping his water-heater and using the water-heater by burning wooden pieces and cow-dung cakes. Not only such finding is reached, but the suit of the landlord for declaration and permanent injunction is decreed by the trial Court which judgment and decree is accepted by the tenant. It is also not disputed that the landlord has on number of occasions requested the tenant not to make use of the parsal or osri or backyard portion and it is also found that the tenant has persisted in making use of osri or parsal for the aforesaid purpose thereby causing lot of annoyance to the neighbouring occupiers which ultimately led to filing of more than 20 criminal complaints by the landlord (neighbouring occupiers) against the tenant. Unfortunately, having reached said Page 24 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined concurrent finding the two Courts below have for the reasons which are beyond one's comprehension recorded a finding that such conduct of the tenant cannot be said to have caused any mental torture to the landlord. The two Courts have unfortunately insisted that it ought to have been proved that on every occasion when the landlord has gone to the defendant-tenant to request him to remove the cot or charpoy or goods or water-heater the defendant has either assaulted them or has quarrelled with them or has given them abuses. Two Courts have, therefore, recorded a finding that in the absence of such positive evidence, it was not possible for the Courts to take a view that the conduct of the defendant amounted to nuisance and/or annoyance. Having recorded the finding that the defendant-tenant was placing cot or charpoy in parsal and was sleeping there, the Courts have found that it is not stated that he was sleeping in the manner which was not befitting to any reasonable person and therefore, such user by the tenant cannot be said to cause any annoyance to the neighbouring occupiers. As regards placing of water-heater in parsal and use of wooden pieces and cow-dung cakes is concerned, the Courts have concurrently found that the tenant was not using the charcol but he was using wooden pieces and cow-dung cakes which would result into emission of black smoke which would naturally cause annoyance to the neighbouring occupiers, more particularly, when smoke would go upward in a building covered from all the four sides would cause nuisance or annoyance to the neighbouring occupiers residing on the ground floor as well as first and second floors. In every respect, therefore, the present case is one which is squarely covered by the ratio of decision of the learned single Judge (S.N. Patel, J.) and two Courts below have Page 25 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined unfortunately not only failed to follow such binding precedent but has for no perceivable reason refused to follow the same and by a very laboured process of reasoning distinguished the said judgment by making following observations:
"In the present case, it is a fact that the defendant was not given on lease the parsal and the chowk and the bath room but there is no reliable and sufficient evidence that the plaintiffs used to come for taking bath in the said bath room and that the defendant had created troubles to the plaintiffs or to his family members by keeping the cot in the parsal or nearby the said bath room. There is also no reliable and sufficient evidence that the plaintiffs or any of their family members are required to pass on many occasions from the said parsal and that on account of the kits of the defendants in the parsal or the cot the quarrels used to take place. So, as such, the authority, relied upon by the plaintiffs is not of any help."
18. In my opinion, once the finding was reached by the trial Court that the tenant was not entitled to use the open place of osri or parsal or backyard portion as well as bath room and that he was not entitled to use the same by keeping his cot or charpoy, for storing his goods or articles or for keeping water-heater and using the same, and once the trial Court granted permanent injunction restraining the tenant from committing such conduct and the tenant having accepted such decree and judgment of the trial Court, it was not permissible for the Court thereafter to hold that the ratio of the decision of S.N. Patel, J. in C.R.A. No. 481 of 1969 was Page 26 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined not attracted to the fact situation. Such a finding is not only against and contrary to the evidence on record but is patently and blatantly against the findings reached in the judgment and decree passed by the trial Court in the suit of the landlord against the tenant. The two Courts were, therefore, not only acting contrary to the binding precedent of this Court, but finding was arrived at by the two Courts by ignoring the material and relevant facts which would warrant, interference by this Court. The decision of the two Courts below is one which would lead to miscarriage of justice because the landlord having convincingly proved that the conduct of the tenant would amount to nuisance or annoyance and would squarely fall within the definition of "annoyance" the decree of eviction is denied to the landlord.
19. Even if the decision in this Court is not to be based on the annoyance caused to the landlord by user of the open place, other part of the conduct of the tenant in persisting to commit the same conduct requiring the landlord to file every time criminal complaint or Chapter case and ultimately before the Criminal Court by pleading guilty and by giving assurance of not repeating such conduct in future and once again persistently committing such conduct more than 20 times would, in my opinion, very strongly make out a case of nuisance or annoyance to the neighbouring occupiers who happen to be landlord in the present case.
20. In the context of this very provision the learned single Judge of Bombay High Court in the case of Gulam Husain Mirza v. Laxmidas Premji reported in 84 (2) All India Rent Control Journal 302 examined Page 27 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined extensively the extent and scope of the words "nuisance" and "annoyance". In the case before the Bombay High Court the tenant was not leased out the open terrace on the top floor. However, he appropriated major portion of the terrace by putting flower posts and he excluded everyone, including the landlords, from user of the said open terrace. He was also using water from the water tank on the top floor directly for the purpose of maintaining a garden of flower posts. He was using the entire terrace as part of the exclusive property by putting stones, mud and all that was necessary to keep up the flower plants and for nursing and tending the flower plants. The question before the Court was whether such a conduct of the tenant amounted to causing nuisance and annoyance to the neighbouring occupiers. The High Court noticed that the words "nuisance" and "annoyance" do not have fixed connotation and in fact have a wide import. The Legislature also has not defined the words. In the Halsbury's Treatise of Laws of England, 2nd edition, Volume 24, para 30 states:
"The term 'nuisance' as used in law is not a term capable of exact definition. It has been used with meanings varying in extent by the old writers, and even at the present day there is not entire agreement as to whether certain acts or omissions shall be classed as nuisance or whether they do not rather fall under other divisions of law of tort.
The treatise further points out:
"Nuisance may be broadly divided into (1) acts not warranted by law or omissions to discharge a legal duty, which acts or omissions obstruct or cause Page 28 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined inconvenience or damage to the public in the exercise of rights common to all His Majesty's subject; (2) acts or omissions which have been designated or treated as nuisance by statute; (3) acts or omissions connected with the user or occupation of land which cause damage to another person in connection with the latter's user or occupation of land".
21. As stated earlier, to be a nuisance an act or omission must be such that unlawfully interferes with other person's use, enjoyment or entitlement of the property of rights therein. Such interference would have an annoying result, for that would affect the ordinary pleasures of men and trouble their minds. Annoyance in a given case would thus, be a result of nuisance. By itself "annoyance", therefore, is a term of wider amplitude and would include all that is disagreeable to good sense and against fair and just habitation. All that is disagreeable and interfering with the pleasurable enjoyment of the ordinary occupants of their premises would be within its ambit. Annoying conduct is irritative conduct. It gives rise to discomfort and displeasure and affects the reasonable peace of mind. It also gives rise to unpleasant feeling amongst men and also gives occasion to rise objections. In short, wherever there is a civil trespass upon and with regard to the use and the enjoyment of the property of others, nuisance would be answered and whenever such a trespass results in irritable and disagreeable situation, annoyance can be found. So, stated, nuisance can be treated as a specie of annoyance. Therefore, all "nuisance" may be "annoyance" but all the acts of annoyance may not amount to nuisance. Actionable or not, annyoance could be established by reason of the Page 29 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined fact that the given conduct interferes with the ordinary comforts and pleasure of persons.
22. From the terminology employed in Section 13(l)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and other identical statutes enacted by other State legislatures where same terminology is employed providing grounds of eviction of tenant, it becomes clear that legislature was contemplating acts or conducts of private nuisance committed by the tenant so as to cause nuisance or annoyance to the neighbouring occupiers. The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of one's property. Nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of:
(a) a right belonging to him as a member of public, when it is a public nuisance or
(b) his ownership or occupation of land or some easement, profit or other right used or enjoyed in connection with land, when it is a private nuisance.
A private nuisance may be and usually is caused by a person doing something on his own property or in the property of his occupation, his conduct only becomes nuisance when the consequences of his acts are not confined to his own property but extend to the property of his neighbour or neighbourly occupiers by:
(I) causing an encroachment on his neighbour's property when it closely resembles trespass, (II) causing physical damage to his neighbour's land or building or works or vegetation upon it, or Page 30 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined (III) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his property.
It is a nuisance when a person does something on his own property which interferes with his neighbour's ability to enjoy his property by putting it to profitable use.
23. Nuisance of the third kind referred to hereinabove, i.e., in the sense of causing an interference with the enjoyment of property are for instance, creating stenches by carrying on of an offensive manufacture or otherwise causing smoke or noxious fumes to pass on to the neighbour's property, raising clouds of coal dust, making unreasonable noises, or vibration. In this kind of nuisance, "the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes, or injuriously effects the senses or the nerves there is no absolute standard to be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The acts complained of as constituting the nuisance, such as, noise, smells or vibration will usually be lawful acts which only become wrongful from the circumstances under which they are performed, such as, time, place, extent or the manner of performance. In organised society everyone must put up with a certain amount of discomfort and annoyance from the legitimate activities of his neighbours, and in attempting to fix the standard of tolerance the vague maxim sic utere tuo, ut alienum non laedas has been consistently invoked. But the maxim is of no use in deciding whether an interference can amount to an actionable nuisance and the Courts have to strike a Page 31 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the plaintiff to the undisturbed enjoyment of his property. No precise or universal formula is possible but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society. "Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself but by reference to all the circumstances of the particular case. A nuisance or annoyance to provide a ground of eviction of the tenant must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man. An interference with something of abnormal sensitiveness does not of itself constitute a nuisance. A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or for pleasure. But once the nuisance is established the landlord who is a neighbouring occupier has the cause of action to move the Court for eviction of tenant. The inconvenience or discomfort which is caused to the neighbouring occupier must be one materially interfering with ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober and simple notions among the people living in Indian society. To send regularly large volumes of heavy smoke by burning wood pieces or cow-dung cakes in the water-heater which would necessarily travel to the rooms of the adjoining neighbours or occupiers in the same tenement may well amount to nuisance. Similarly, to commit act of trespass by encroaching upon and using the portion of the premises not leased out to the tenant despite consistent requests Page 32 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined by the landlord not to make such use which ultimately led to quarrels between the two, tenant at times beating the landlord and at times even abusing the landlord and/or the members of his family and ultimately causing mental torture or tension to such an extent that the landlord is compelled to institute or lodge criminal complaints in the Court of law both for maintenance of law and order situation as well as for protection to him against the threats and violative conduct of the tenant would undoubtedly cause annoyance or discomfort to the landlord. It is true that the landlord might, in the spirit of "live and let live" forgive the tenant on tenant tendering apology and giving assurance in the criminal Court of better behaviour in future and of not repeating such conduct in future. However, this would not amount to landlord accepting to live with such nuisance or annoyance for all times to come or to the landlord abandoning his remedies. A wrongful act of the tenant in the present case has given rise to two remedies, one is remedy of launching criminal prosecution and another is remedy of recovering damages. Under the special statute governing the right of landlord and the tenant like Bombay Rent Act still third remedy is provided being remedy of seeking eviction of tenant on the ground that his conduct amounted to nuisance or annoyance to the neighbouring occupiers. It would not, therefore, be right to say that since the tenant pleaded guilty in most of the criminal complaints filed against him and assured the criminal Court of better behaviour and of not repeating the conduct for which the criminal complaint was filed against him and since thereupon the landlord has accepted the recording of compromise between him and the tenant in the criminal case, the landlord has given up his remedy of seeking eviction of the tenant. In my opinion, the three types of remedies Page 33 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined available to the landlord are concurrent and it is always open to him either to resort to all of them or to resort to any one or two of them. In the present case, the landlord was one who really behaved with the philosophy of "live and let live". He is a man of uncomparable tolerance. However, when the tenant has persistently and stubbornly acted not only in breach of his duty but also in breach of assurances given by him to the criminal Courts and has repeated the conduct which has caused tremendous and unbearable pain and mental torture to the landlord for which he was required to file as many as 20 complaints his conduct squarely falls within the meaning of "nuisance" and "annoyance" and he is liable to be evicted. A man of extraordinary tolerance also got exhausted and a saturation point of tolerance was reached. It was in such circumstances that he resorted to statutory remedy of eviction of the tenant on the ground of persistent and assiduous conducts amounting to nuisance or annoyance.
24. Turning now to the actual facts found by the two Courts below, firstly, it is undisputedly recorded that the tenant had no right to use the parsal, osri or backyard portion for the purpose of placing his cot or charpoy and sleeping thereon, for storing his goods, kits and articles, for placing and washing his cycles and for placing water-heater and using the same by burning wood pieces and cow-dung cakes resulting into emission of voluminous black smoke which would travel into the rooms of the premises of neighbouring occupiers. Secondly, it is found that the stand of the tenant that he has the right to use parsal, osri or backyard portion for the aforesaid purpose was not substantiated by him and was given up in deposition Page 34 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined and that in the suit filed by the landlord not only declaration was granted in favour of landlord but permanent injunction was granted restraining the defendant-tenant from using parsal, osri or backyard portion for any of the aforesaid purposes. Such a decree of declaration and permanent injunction is accepted by the tenant as he has not preferred any appeal against such decree and the same has become final. Thirdly, it is found from oral as well as documentary evidence by the two Courts below that the plaintiff-landlord was required to file 21 criminal complaints against the tenant. Exh. 49 is a compromise recorded in Criminal Appeal No. 61 of 1974 which would go to show that the tenant accepted the guilty and assured the Court of not repeating the conduct. Exh. 50 refers to another charge-sheet against the tenant where the tenant has been guilty of beating the landlord which also resulted into compromise. Exh. 51 is one another compromise in Criminal Case No. 3021 of 1971 wherein the tenant has agreed not to put any article or goods or not to put his charpoy or cot to sleep thereon in the open place which was admitted to be in possession of the landlord. There is yet another compromise on record which had taken place in Criminal Revision Application No. 7 of 1973 wherein also similar assurances were given by the tenant to the landlord and the criminal complaint was compromised. Exh. 53 is certified copy of another compromise which was recorded in Chapter case proceedings wherein also the tenant has agreed to keep peace and tranquility and not to resort to any violence. Exh. 54 is yet another complaint where the tenant has allegedly beaten the servant of the landlord. The tenant has filed countercomplaint alleging that such charge against him would amount to defamation. These two cases had also Page 35 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined resulted into compromise and from such compromise at Exh. 57 it becomes clear that the tenant has, once again, assured the Court not to act in the manner in which he has acted and has tendered unconditional apology and has not pressed his complaint of defamation. Over and above the history of aforesaid 21 criminal complaints in most of which the tenant has admitted his guilt and has assured of not repeating such conduct and has yet persistently and stubbornly acted in the same fashion so as to cause annoyance and mental torture to the landlord would go to establish that the conduct of the tenant amounted to causing nuisance or annoyance to the neighbouring occupiers, landlord being one of them. The lower appellate Court has in fact found that it was expected of the tenant that he must live in a co-operative manner with the landlord. It is also found that the tenant has not come to the Court with clean hands and he has taken contentions which were contradictory and self- defeating. He has also found that even the report of Commissioner at Exh. 82 has also found that the tenant has persisted in making use of parsal, osri and/or backyard portion of the premises for the purpose of storing his personal articles, goods and kits, for the purpose of placing water-heater. In one of the photographs taken it is also found that a cot or charpoy was lying and his articles were also lying in the open place which was not to be used by him. In view of such voluminous documentary evidence one fails to understand as to how two Courts have recorded the finding that the conduct of the tenant did not amount to nuisance or annoyance to the neighbouring occupiers. Both on law as well as on facts, the findings reached by the two Courts below are not only against the well settled principles of law, but are in total disregard of Page 36 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined voluminous documentary evidence. In my opinion, therefore, it is a case where interference of this Court in its revisional jurisdiction is absolutely essential as non-exercise of power would result into substantial miscarriage of justice. In fact, in para 11 of the judgment of the Extra Asst. Judge, Surat dated 6-10- 1980 all the findings are reached in favour of plaintiff- landlord, but in concluding portion of para 12 abruptly an inconsistent finding is recorded in the following terms:
"Considering all the aspects there is some truth in the case of the plaintiffs that the defendant may have been causing nuisance and annoyance to the plaintiffs, but unfortunately the plaintiffs have failed to bring required evidence to prove the conduct of the defendant amounting to nuisance and annoyance. It is also a fact that the plaintiffs had also filed a suit for declaration and injunction and that the learned trial Court was pleased to declare that the defendant had no right to put his articles like cot, water-heater or cycles in the rear side of the parsal or in the chowk, which the defendant has no right to put, and clean or wash his bicycles in the chowk, the defendant has no right to obstruct the passage of the plaintiffs and other tenants from going to the latrine and was also pleased to order for the perpetual injunction restraining the defendant from putting goods like cot, water-heater, cycles etc. in the rear side of the parsal or chowk and for restraining the defendant from cleaning and washing cycles in the chowk. So, as such, it is clear that the defendant was not entitled to carry out such acts in the parsal and the chowk and so, Page 37 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined as such, declaration and injunction was granted against the defendant. The defendant has also not preferred any appeal against the said judgment and decree of the trial Court of such nature in Old Regular Civil Suit No. 385 of 1972, which is the Rent Suit No. 680 of 1977, which is consolidated with the Rent Suit No. 638 of 1977. But the plaintiffs have failed to prove that the defendant's acts in putting up the cot in the parsal and some kits in the parsal was amounting to nuisance and annoyance as required for the eviction decree under Section 13(1)(1) of the Bombay Rent Control Act."
The said judgments will not be of any assistance in the facts of the present case as in all the judgments as in the case of AIR 1996 SC 532, in the said case, there was a rent agreement and rent note provided that the tenant was required to use, only the portion of the open land, which was given to him and in the said case, there was a specific agreement that the tenants will not allow his cattle to stay beyond the demised land and Appellate Court has taken into consideration that the obligation contained in the rent note is not a personal obligation, and there was an obligation which was cast on the tenant and the same is directly linked with a manner in which the suit property was to be used and in the present case neither there is any rent note nor the petitioner landlord has proved that the adjoining land was not used by the respondent tenant and that respondent tenant have encroached upon the said land.
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20.Learned advocate for the petitioner-landlordhas relied upon the judgment in case of Dinesh Sakarabhai Patel Vs. Suryaben Navinchandra Shah, 2010 (3) G.L.H. 569, para nos.11, 12 and 23 it is held as under:
"11. He further relied on the decision of this Court in the case of Smt. Laxmiben Mavjibhai and another V/s. Shankarbhai Mulubhai, 36 (2) GLR 1320 wherein decree of eviction on the ground of conduct of the tenant causing nuisance or annoyance was passed. The tenant was not leased out the osri, parsal or backyard and was not entitled to use the same. Inspite of this, the tenant used this portions by placing his charpay for sleeping purpose, by storing his goods, keeping water heater and burning wooden pieces or cow dung cakes. This act of the tenant was held as nuisance and annoyance.
12. Mr. Kavina further relied on the decision of the Apex Court in the case of Patel Chandulal Trikamlal and others V/s. Rabri Prabhat Harji and another, AIR Page 39 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined 1996 SC 532 wherein part of land was demised for keeping grazing cattle. Rent note contains the terms of which states that the tenant has measured the land and he will not use the land lying beyond said limits and he will put up wire fencing demarcating demised land. Term constitutes condition of tenancy and not personal obligation of tenant. It is an obligation on him cast in his capacity as tenant. The Court held that the tenant committed breach of term and encroached upon adjacent land of landlord and he is liable for eviction.
23. So far as, the second issue in relation to the act of the tenant causing nuisance and annoyance to the landlord is concerned, Section 13 (1) (c) is relevant. It says that, the landlord shall be entitled to recover possession of any premises if the Court is satisfied 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 neighboring occupier, or has been convicted or using the premises or allowing the premises to Page 40 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined be used for immoral or illegal purposes. The first part of Section 13 (1) (c) is relevant for the purpose of deciding the issue arose before this Court. The learned Judge of the Small Cause Court after framing the issue as to whether the plaintiff prove that the defendant is causing nuisance and annoyance by using marginal land as alleged in the plaint, has observed that the tenant was allowed to use only the suit premises to run his business and when he started using the open land exclusively for his business purpose and when neighboring occupier is the owner himself it does cause nuisance and annoyance to the owner also. The Appellate Bench has more elaborately discussed this issue by putting fencing on both sides of the open land and by putting gate, the tenant has covered the open land where he has put benches. Court Commissioner's report reflects that there are tin box and also found pukka construction by sand and cement. The tenant also put lock on the gate. The tenant has admitted in his cross-examination that he kept gate closed and key remains with Page 41 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined him. The landlord cannot enter without opening that gate. By adopting this method, the tenant has curtailed the landlord's right to use the property. The landlord has submitted that tenant and their persons by playing tape-recorder and radio with full volume cause nuisance. The tenant allowed the persons to sit on that place and hence the family members of the landlord felt inconvenience to move freely on that land and they could not enjoy their right to move freely on the property. Thus, the plea of causing nuisance and annoyance to the landlord is also established and both the Courts below have given their concurrent finding on this issue. There is no reason for this Court to disturb the said finding of facts."
In the said case, it has been proved by the tenant that the tenant was allowed to use only the suit premises to run his business and the tenant has started using the open land exclusively for his business purpose and the same amounted to nuisance and annoyance and in the said case, it has been established that there was a pakka and kacha construction in the open land. In the present case, the Trial Court has already held that there is no pakka/kaccha construction which has Page 42 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined been constructed by the respondent tenant and in that view of the matter, the said judgement will be of no assistance to the petitioner.
21.The judgment in case of Smt. Laxmiben Mavjibhai & Anr. V. Shankarbhai Mulubhai, relied on by the plaintiff in the said case there were criminal complaint or chapter case and ultimately in the criminal complaint, the tenant pleaded guilty and by giving assurance of not repeating such conduct in future and thereafter committing the said conduct amounted to nuisance and annoyance and in that view of the matter, the Court held that the same amounts to annoyance and nuisance on the neighboring landlord and a decree was passed. In the present case, there is neither any criminal complaint or any chapter case filed against the respondent tenant and or the original tenant and Trial Court and the Appellate Court have held that there is no kaccha/pakka construction made by the respondent tenant.
22.The fact remains that the petitioner landlord has failed to prove the fact that the respondent tenants have encroach and trespassed on the suit land, and therefore the First Appellate Court has rightly held that the petitioner landlord has not proved that the respondent defendants have made an encroachment and trespass on the adjoining land of the petitioner landlord and therefore, when the said fact has not been proved by the petitioner landlord, the question of Page 43 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined nuisance or annoyance to the petitioner does not survive and the First Appellate Court has rightly quashed and aside the judgement of the Trial Court.
23.In excising revisional power under Section 29(2), the High Court has to ensure that the principles of law have been correctly borne in mind by the First Appellate Court. In exercise of revisional power under Section 29(2), the High Court has to take into consideration that the facts have properly been appreciated, and a decision has been arrived at taking into consideration all material and the relevant facts into consideration and in order to warrant interference, the decision that has been taken by the First Appellate Court must be such decision which could not have been arrived at and that such a decision does not lead to miscarriage of justice, therefore, in the guise of revisional substitution of the view taken by the First Appellate Court where two views were possible and the First Appellate Court has taken a particular view, and if the said view was a possible view, the High Court can not take a substitute view of its own in place of the possible view, which has been taken by the First Appellate Court and the fact that the High Court would have taken a different view is wholly irrelevant till the time that the view that has been taken by the First Appellate Court was a possible view that has been taken.
24.Therefore, on the basis of overall analysis of the material on Page 44 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined record, on the basis of conclusion that has been referred to by the Court below, the Court is of the opinion that there is no material irregularity nor any perversity reflecting which would permit this Court to exercise revisional jurisdiction. The entire reasoning of the First Appellate Court below is based upon clear analysis of the testimony of the witnesses for either side and also in consonance with documentary material and according to this Court it cannot be said that there is any perversity in the said order. Moreover, while deciding the Revision Application by the High Court in revisional jurisdiction under this Act, the High Court is confined to find out that findings of fact recorded by the Court below is according to law and does not suffer from any abuse of law and the findings recorded by the Court below if perverse or has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or grossly erroneous that, if allowed to stand, would result in gross miscarriage of justice, the same is open for correction because it is not treated as finding according to Law and in that event the High Court, in exercise of its revisional jurisdiction under the Bombay Rent Act, is entitled to set aside the impugned order as being not legal or proper.
25.The High Court can not interfere with the finding of facts recorded by the first Appellate Court. The consideration or examination of the evidence by the High Court in revisional jurisdiction under this Act is confined to find out that finding recorded by the court below is according to Law and does not Page 45 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025 NEUTRAL CITATION C/CRA/195/2004 JUDGMENT DATED: 01/05/2025 undefined suffer from any error of Law and only if the finding of facts recorded by the courts below, is perverse or has been arrived at without consideration of the material evidence or that such finding is based on no evidence, or misreading of the evidence, or is grossly erroneous that, if allow to stand, it would result in gross miscarriage of justice and the same is open to correction as the same is not treated as findings according to Law and in the present case, the finding of facts recorded by the appellate Court is neither perverse nor arrived at without consideration of the material evidence. In the present case, in revisional jurisdiction, the High Court can not exercise its powers as an appellate power to reappreciate or reassess the evidence for coming to a different finding of facts. Revisional jurisdiction is not and can not be equated with the powers of reconsideration of all questions of fact as a court of first appeal.
26.The findings recorded by the Appellate Court are based on critical appreciation of the evidence led by the parties on record and does not suffer any error or material irregularities. The Appellate Court has rightly come to the conclusion that the landlord has failed to prove eviction in the property as per Section 13(1)(c) of the Rent Act and, therefore, there was no error committed by the Appellate Court which requires any correction at the hands of the High Court.
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27.Under the revisional jurisdiction, the High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. In view of the aforesaid facts and proposition of law and in view of reappreciating of facts by the Appellate Court, since no case is made out to call for any interference in the judgment and order passed by the Appellate Court quashing the judgment and decree passed by the trial Court, the present Revision Application requires to be dismissed and it is dismissed accordingly. Rule is discharged.
Sd/-
(SANJEEV J.THAKER,J) URIL RANA Page 47 of 47 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu May 01 2025 Downloaded on : Fri May 02 06:09:17 IST 2025