Bombay High Court
Jagdish Brothers Agrawal And Ors. vs Gayasuddin Abdul Kadar Konkani And Ors. on 5 June, 2004
Equivalent citations: 2005(2)BOMCR409, 2005(1)MHLJ434
Author: D.G. Karnik
Bench: D.G. Karnik
JUDGMENT D.G. Karnik, J.
1. The petitioners in writ petition No. 3786 of 1990 are the tenants and petitioners in writ petition No. 5456 of 1990 are the landlords, and they would be hereinafter referred to as the tenants and landlords respectively. The landlords purchased the suit property on 13th December, 1979 and thereafter filed Regular Civil Suit No. 202 of 1980 for possession inter alia on the ground the reasonable and bona fide requirement for their own use and occupation and that the conduct of the tenants amounted to nuisance and annoyance. The suit premises consist of three rooms used as shops on the ground floor and residential premises on the first floor. On one side of the three rooms on the ground floor there is a staircase which leads to the first floor. On the first floor, the premises on the western side of the staircase are in possession of the tenants and premises on the eastern side are in possession of the landlords. At the end of the staircase there is a common landing on the first floor from which one can have access to the eastern and western side of the premises on the first floor. According to the landlords, the tenants were obstructing them from using the staircase and thereby preventing them from using the premises on the eastern side of the first floor. The landlords therefore, filed a separate suit bearing Suit No. 187 of 1981 for an injunction and restraining the tenants from preventing the landlords from using the staircase and having access to the eastern side of the premises on the first floor.
2. The trial Court held that the landlords had not proved that they required the suit premises reasonably and bona fide for their own use and occupation. It did not record any finding on the issue of hardship in view of the fact that the landlords were held not to require the suit premises reasonably and bona fide. The trial Court however, held that the tenants had obstructed the landlords from using the staircase and having access to the eastern side premises on the first floor and thereby caused nuisance and annoyance to the landlords. The trial Court therefore, passed a decree of possession on that ground. Simultaneously, the other suit bearing Regular Civil Suit No. 187 of 1981 filed by the landlords for an injunction was also decreed.
3. The tenants filed two appeals one against the judgment and the decree for possession in Regular Civil Suit No. 202 of 1980; other against the judgment and decree of injunction in Suit No. 187 of 1981. The landlords filed cross objections in the first appeal of the tenants and claimed a decree for possession also on the ground of reasonable and bona fide requirement.
4. The appellate court held that the staircase was meant for the exclusive use of the tenants and therefore, they were entitled to prevent the landlords from using the staircase and as such it did not amount to nuisance and annoyance. It therefore, dismissed the landlords suit for injunction. The appellate court, however also reversed the finding on the bona fide requirement and held that the landlords required the suit premises reasonably and bona fide for their own use and occupation and that greater hardship would be caused to the landlords by refusing to pass a decree than to the tenants by passing a decree. The tenants have filed Writ Petition No. 3786 of 1990 challenging the decree of possession on the ground of bona fide requirement. The landlords filed Writ Petition No. 5456 of 1990 praying that a decree of possession should be passed also on the ground of nuisance and annoyance.
5. Against the judgment of the appellate Court in other appeal dismissing the landlord's suit No. 202 of 1980 for an injunction restraining the tenants from obstructing them from using the staircase, the landlords had filed second appeal No. 424 of 1990. By a judgment and order dated 5th February, 1990 the second appeal No. 424 of 1990 was allowed. In second appeal, this court held that the staircase was not meant for the exclusive use of the tenants but was meant for the common use of the tenants as well as the landlords. This court also held that the tenants had illegally and unlawfully obstructed the landlords from using of the said staircase. This court confirmed the decree for injunction passed by the trial Court in Suit No. 187 of 1981. The judgment in second appeal No. 424 of 1990 has become final. The findings in the second appeal rendered in proceedings between the same parties would operate as res judicata against the tenants under Section 11 of the Code of Civil Procedure.
6. Mr. Abhyankar, learned counsel for the tenants faintly urged that the landlord's premises on the eastern side on the first floor had another access from another property though not belonging to the landlords and they were using the eastern side portion through the other access. He therefore, submitted that the landlords were not required to use the staircase in the suit premises for having access to the premises on the eastern side of the first floor. He therefore, submitted that preventing the landlords from using of the staircase did not prevent them from using the eastern portion of the first floor and no nuisance can be said to have been caused to the landlords. In view of the decision in second appeal No. 424 of 1990, it cannot be disputed that the staircase in the suit property is meant for the common use of the landlords and tenants. If the staircase was meant for the common use of the landlords and the tenants, the tenants could not have obstructed the landlords from using of the staircase and could not have prevented the landlords from having access to the premises on their occupation on the eastern side of the first floor. Mere fact that the landlords had access to their premises on the first floor from the staircase in another property not belonging to them was no ground for the tenants to prevent the landlords from using the common staircase. This illegal prevention by the tenants preventing the landlords from using the staircase per se amounts to nuisance and annoyance. In Gulam Hussain v. Laxmidas Premji reported in 1984 Mh.L.J. 215, this court considered what amounts to nuisance and annoyance. In that case, the landlords of the building were occupying second floor while the tenants were occupying third floor and on the top of the building there was a terrace belonging to the landlords and a water tank. The tenants used the entire terrace on the top floor for keeping the flower pots and also used the water tank for the purpose of watering the plants and they did this to the exclusion of the landlords and did not allow the landlords to use the top floor. It was held that this act of the tenants in preventing the landlords from using the top floor/terrace amounted to nuisance and annoyance. The present case is similar in which the landlords have been prevented from using the staircase which they had a right to use. More recently in Major D. V. Pause v. Mr. Laxminarayan Khar , this court again had an occasion to consider what amounts to nuisance and annoyance. In that case, the tenants were let out two rooms a kitchen and a sanitary block but, they falsely claimed a right over the open area, garden and passage and obstructed the landlords and their family from the peaceful enjoyment of the same. The appellate Court held it amounted to causing nuisance. The view of the appellate court was affirmed by this Court. In my opinion, excluding or preventing the landlord from the enjoyment of the property or premises to which he is entitled to per se amounts to nuisance and annoyance.
7. It is not disputed before me that the tenants had obstructed the landlords from using of the common stair and therefore, the landlords were required to file a suit for an injunction apart from filing a suit for possession. In the suit for injunction, it was held that the staircase was meant for the common use and the tenants were restrained from preventing the landlords from using of the said common staircase belonging to the landlords. As stated, this finding has become final. Therefore, the very fact that the tenants prevented the landlords from using of the common staircase belonging to the landlords amounts to a conduct on the part of the tenants which amounts to nuisance and annoyance. The trial Court therefore rightly passed a decree for possession on that ground and the first appellate court erred in law in refusing to pass a decree on that ground.
8. It is the landlord's case that they do not own any other property and they are brothers three of whom are married and have children. They desire to start their own business. They have no other business of their own and therefore, they require the suit premises reasonably and bona fide for starting of business. They have stated that they want to do business in grocery and grain. Mr. Abhyankar contends that the uncles of the present landlords are the owners of the neighbouring property which was rebuilt just prior to the filing of the suit, with four shops on the ground floor. In two shops, the uncles have started their own business while the two shops were let out. The landlords if they really required the suit premises could have started the business in two shops which were let out by the uncles. It is not shown that the landlords had any right in the shops constructed by their uncles. The landlords are muslims by religion and do not form a joint family with their uncles. They have no right in the premises belonging to the uncles. It was not put in the cross examination of the landlords that they could have requested their uncles to let out the neighbouring two shops. It is possible that uncles may not want to let out the shops to the petitioner landlords either because relations are not cordial for fear of spoiling relations when they claim back premises for their own use. In the absence of any finding as to whether the neighbouring two shops could have been available to the landlords on rent for starting their business, it cannot be said that they could have and should have started business in the uncle's property. As the landlords did not possess any premises for their business and they were all adult married and had families to look after, their desire to start business in the suit shops cannot be said to be mala fide and anything but, reasonable and bona fide. In any event, the finding recorded by the first appellate court that the landlords require the suit premises bona fide and reasonably is a possible finding which cannot be interfered in exercise of writ jurisdiction under Article 227 of the Constitution of India.
9. The landlords have also stated that they did not have sufficient premises for their residence. They were residing with their father and probably possessed two rooms on the back side of the suit premises. Considering the total number of family members in the family of the landlords which is 25, the two rooms on the back side of the property cannot be said to be enough for accommodating the landlords. Their requirement of the first floor of the premises for residence is also reasonable and bona fide. For these reasons, the finding of the first appellate court that the landlords required the suit premises reasonably and bona fide on the ground floor for business and the first floor for residence is affirmed.
10. The tenants have admitted that they have other premises though it is contended that they are not the shop premises but are used as a godown. The tenants deal in bidi leaves in wholesale and retail. It is possible to carry out this business from the godown though there would be some inconvenience. It would also be possible for them to acquire a small premises for the purpose of office or receiving orders for delivery of the bidi leaves which can be delivered from the godown. The hardship likely to be caused to the tenants by passing a decree would be lesser than the hardship likely to be caused to the landlords, who have no business premises of their own by refusing to pass a decree.
11. In the circumstances, the decree for possession passed by the appellate court has to be affirmed. Accordingly, Writ Petition No. 3786 of 1990 is dismissed and Rule is discharged. Writ Petition No. 5456 of 1990 filed by the landlords is allowed and Rule is made absolute in terms of prayer clause (b),
12. Authenticated copy allowed.