Holding

A usufructuary mortgagee is deemed a landlord under section 13(1) of the Act, and the appellate court's findings of nuisance were supported by ample evidence, so the eviction order stands.

Summary

The appellant, Narpatchand, occupied a flat in a multi‑storeyed building. The building was mortgaged with possession to the respondents, who became usufructuary mortgagees and thus landlords under the Bombay Rents Hotel and Lodging House Rates Control Act, 1947. The respondents served a quit notice and sued for eviction on the ground that the appellant's conduct constituted a nuisance under section 13(1)(c) of the Act. The trial court and the appellate court upheld the eviction, finding that the appellant had operated a textile mill on the terrace, misused common water tanks, removed radio and TV aerials, and obstructed common stairways, all causing disturbance to neighbours. The appellant challenged the jurisdiction of a usufructuary mortgagee to act as landlord and the sufficiency of the evidence of nuisance. The Supreme Court held that the definition of "landlord" in the Act includes a usufructuary mortgagee and that the appellate court's findings were well‑supported by the record, thereby dismissing the appeal.

Issues considered

The expression 'landlord' in section 13(1) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 – does it include a usufructuary mortgagee?
Whether the appellate court's findings of nuisance and annoyance were supported by the evidence on record.
Whether the acts alleged against the appellant constitute 'nuisance or annoyance' within the meaning of section 13(1)(c).

Legislation cited

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. 13(1)(c), s. 5(3)
Constitution of Indias. Article 136, s. Article 227
Transfer of Property Act, 1882s. 109, s. 58(d)

Subjects

usufructuary mortgagelandlord definitionevictionnuisanceBombay Rents Actspecial leaveappellate court findingsevidence appraisal

Judgment

NARPATCHAND A BHANDARI A
v.
SHANTILAL MOOLSHANKAR JANI AND ANR.

MARCH 18, 1993

(N.M. KASLIWAL AND N. VENKATACHALA, JJ.] B

Bombay Rents Hotel & Lodging House Rates Control Ac~ 1947 :

Section 13(1)(c)-Expression 'Landlord'-Scope of-Includes an
usufructuary mortgagee where the tenanted premises is the subject of usufiuc- C
tuary mortgage-Usufructuary mortgagee can file a suit for eviction-
'Nuisance'-For eviction-Ulhat is.

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

Constitution of India, 1950 : Article 136.
D
Appeal-Concurrent findings of fact-Findings based on appreciation
of ample evidence-Interference with such findings not called for by Supreme
Court.

The appellant-defendant was in occupation of a flat as its tenant in E
a storeyed building comprised of a large number of flats occupied by
different tenants. When the owner of that building mortgaged with posses-
sion the said building in favour of respondents-plaintiffs, the appellant-
defendant and other tenants in different flats of that building became
tenants under respondents-plaintiffs (usufructuary mortgagees) and con-
tinued as such tenants on payment of monthly rents to them. But by a quit F
notice dated July 3, 1967 the respondents-plaintiffs determined the month-
ly tenancy of the appellant respecting the premises in his occupation and
sought to recover from him the possession of the premises by instituting
a suit in the court of Small Causes at Bombay on the very ground on which
his tenancy was terminated, that is, that the defendant had been guilty of G
conduct which was a nuisance or annoyance to the adjoining or neighbour-
ing occupiers, under clause (c) of sub-section (1) of Section 13 of the
Bombay Rents H~tel and Lodging House Rates Control Act.

The trial court, on an appraisal of the oral and documentary
evidence adduced by the parties, recorded its findings on issues in favour H
471
472 SUPREME COURT REPORTS (1993) 2 S.C.R.

A of the respondents-plaintiffs. Consequently it decreed the suit of the
respondent-plaintiffs for recovery of possession of the premises. The a~
pellate court before which the decree of the trial court was appealed
against by the appellant-defendant, on its re-appraisal of the evidence,
alll.rmtd the findings of the trial court and dismissed the appeal.

B The findings as to the acts of nuisance and annoyance attributable
to the api>ellant and the persons who were residing fn the premisesare (i)
that the appellant erected a Textile Printing Mill on the terrace of the
storeyed building and ran it during nights so as to make -the occupiers of
the adjoining and neighbouring tenements suffer the vibrations and noise
C in the building arising on account of the running of the Mill and loose
their quiet and sleep during nights; (ii) that he unauthorisedly utilised the
water st~red. in the common over-head tanks on the terrace, meant for
domestic use of all the occupiers of the tenements in the building, for
running bis Mill ·a non-domestic purpose; (iii) that the appellant and the
person~ residing with him in the premises had often removed the radio
D aerials and T.V. antenas of the occupiers of the adjoining and neighbour·
ing tenaments which had been fixed above the common terrace of the
building; (iv) that they were wrong!.)'. preventing the respondents· plaintiffs
and their workers in reaching the common terrace for repairs of radio
aerials, T.V. antenas, telephone lines and the like of the occupiers of the
E neighbouring tenaments in the building by blocking its staircase.
I
Feeling aggrieved by the decree of the trial court and its affirmation
by the appellate court, the defendant impugned the same by filing a writ
petition under Article 227 of the Constitution before the High Court of
Bombay, but that writ petition was rejected in limine.
F
In appeal to this Court it was contended on behalf of the appellants
(a) that an usufructuary mortgage of tenanted premises cannot file a suit '--(
for recovecy or its possession from the tenant under section 13(1) (c) or
the Act; (b) the findings of the appellate court recorded respecting acts of
G nuisance and annoyance not having been based on the evidence on record,
become unsustainable; (c) the acts found to have been committed by the
appellant-defendant and the persons residing with him in the premises,
even if are- true, they could not have been regarded as acts amounting to -?-
nuisance or annoyance under section 13(1) (c) of the Act.

H Dismissing the appeal, this Court,
NARPAT CHAND v. SHANTILAL MOOLSHANKAR 473

HELD 1. The expression 'landlord' in sub-section (1) of section 13 A
of the Act includes an usufructuary mortgagee where the tenanted
premises is the subject of usufructuary mortgage. Section 13(1) contains
nothing repugnant in its subject or context which would disentitle an
usufructuary mortgagee, as a landlord of the tenanted premises to recover
its possession from the tenant on the ground envisaged under clause (c).
B
. [482A, 480B]

S.B. Abdul Azeez (By Lrs.) v. M. Ma11iyappa Setty and Ors., [1988] 4
S.C.C. 727, relied on.

V. Dhanapal Chettiar v. Yesodal Ammal, A.LR. 1979 S.C. 1745,
referred to.
c
Nana/al Girdharlal and Anr. v. Gulamnabi Jamalbhai Motonvala and
't Ors., 1972 (13) Gujrat law Reporter 880, referred to as no longer good law.

l.1 Under the definition of'usufructuary mortgage' in clause (d) of D
Section 58 of the Transfer of Property Act, 1882 an usufructuary
mortgagee is a transfer of a right to possession of the mortgaged property I,
'
and the right to receive the rents and profits accruing from such property.
When a lessor of a leased property creates an usufructuary mortgage in
respect of such property what he transfers under Section 109 of the T.P. E
Act as a mortgagor in favour or the usufructuary mortgagee includes his
right to possession of such property and the right to receive the rents and
profits accruing from it. Thus Section 109 of the T.P. Act entitles the
usufructuary mortgagee from the lessor, as against the lessee, for all
rights which the lessor had against such lessee. From this, it follows that
tenanted premises, if is mortgaged by the landlord by way of usufructuary F
mortgage, the usufructuary mortgagee thereunder would become entitled
to receive the rents and profits accruing from such property in his own
~··
right and on his own account. [479E-G]

2. It cannot be said that the findings of the lower appellate court are
not supported by the evidence on record of the case. In fact, sonie of the G
findings are, to a great extent, based on the facts which were admitted by
' the appellant himself. Besides, the findings receive support from the
evidence given in the case by the occupiers of the adjoining and neighbour·
ing tenaments of the same building. Therefore, as seen from the judgment
of the appellate court, its findings in relation to the acts of the appellant H
474 SUPREME COURT REPORTS (1993f2 S.C.R.

A and persons residing \\ith him in the premises are based on appreciation la
of ample evidence that was on record and the same cannot be said to have
been based on no evidence, or even improper appreciation of evidence.
Thus, there is no justification to interfere with such findings of facts
recorded by the appellate court ·virtually affirming the findings of fact
recorded by the trial court. [484D, G·H, 485A]
B
3. There are no statutory definitions of 'nuisance' or 'annoyance'
which.under section 13(1) (c) of the Act constitute a ground for recovery
of possession by landlord of a premises in the occupation of a tenant.
However, the acts of the appellant or persons residing with him in the
C tenanted premises which are found as ads causing nuisance or annoyance
to adjoining or neighbouring occupiers, cannot fall short of bring acts of
nuisance or annoyance if regard is had to their nature, intensity and
duration and the consequential ill-effects which might have been produced
r
f
I
by them on the normal living of such occupiers. They cannot make the '
I-
Court to think that they were not clear acts of nuisance or annoyance
D envisaged under section 13(1) (c) of the Act. Therefore, the courts below
have rightly found them as acts of nuisance or annoyance envisaged under
section 13(1) (c) of the Act. [485D-G]
t
Dhabhi Lalji Kalidas v. Ramniklal Somchand Mehta, 1975 (16)
E Gujarat Law Reporter 824; Gaunshanker @ Babula/ Govindji v. Bhikhalal r
Chhaganla/ & Ors., 1977 (18) Gujarat Law Reporter, 805, held inap·
plicable.

3.1. Even othernise, the acts, said to have been committed by the
defendant and persons residing with him in the premises when are, as
F stated, found by the fact finding courts to have amounted to acts of
nuisance or annoyance entitling the plaintiff under section 13(1) (c) of the
Act to recover possession of the premises from the defendant and when
the High Court has refused to interfere with such finding in exercise of its
writ jurisdiction there could be no justification w!iatever for this Court to
G in~erfere with the same in appeal under Article 136 of the Constitution.
[485H, 486A·B)
CIVIL APPELLATE JURISDlCTION: Civil Appeal No. 447of1982. ~

From the Judgment and Order dated 6.7.1981 of the Bombay High
H Court in W.P. No. 1967 of 1981.
NARPAT CHAND v. SHANTILAL MOOLSHANKAR [VENKATACHALA, J.] 475

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

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

The Judgment of the Court was ddivered by

VENKATACHALA, J. In this appeal by special leave, the summary B
._ rejection by the Bombay High Court of an application filed under Article
227 of the Constitution, for setting aside an eviction order made by the
~ Court of Small Causes at Bombay - the trial court, under clause (c) of

- sub-section (1) of section 13 of the Bombay Rents Hotel and Lodging
House Rates Control Act, 1947, to be referred to as 'the Act' arid upheld
by the appellate Di,ision Bench of the same court - the appellate court, is
questioned.
c

~ Sudarshan Building No. 2, Shivaji Park Road No.3, Bombay-28 is a
storeyed building comprised of a large number of flats occupied by dif-
'ferent tenants. Flat No. 10 in the Second Floor of that building (to be D
referred to as 'the premises') was in occupation of the appellant-defendant
eversince the year 1952 as its tenant under Kherodkar; the owner of the
whole of that building. In, the year 1958, when Kherodkar mortgaged \vith
possession the said building in favour of respondents-plaintiffs, the defen-
dant and other tenants in different flats of that building became tenants
E
_.,,. under plaintiffs (usufructuary mortgages) and continued as such tenants on
payment of monthly rents to them. But, by a quit notice dated July 3, 1967
the plaintiffs determined the monthly tenancy of the defendant respecting
the premises in his occupation and sought to recover from him the posses-
sion of the premises by instituting a suit in the court of Small Causes at
Bombay on the very ground on which his tenancy was terminated, that is, 1=
that the defendant had been guilty of conduct which was a nuisance or
annoyance to the adjoining or neighbouring occupiers. That W;•s a ground
~-
which entitled the landlord under clause (c) of sub-section (1) of section
13 of the Act, to recover possession of the premises from the tenant. That
ground had been based on plaintiffs' allegations of threats of mnrder posed
,by the defendant to the neighbouring occupiers; abuses hurled at neigh-
G
bouring occupiers by his sons; whistling at neighbouring occupiers by the
defendant's sons; spitting against the walls and in the common staircase
-{ area of the building by the defendant's sons; obstructions offered .by the
defendant, his wife, sons and servants to the neighbouring occupiers to
reach the common terrace of the building by a staircase and removal by H
476 SUPREME COURT REPORTS [1993] 2 S.C.R.

them of aerials of radios of the tenants in the other flats of the buliding, . '
which had been fixed above "the· Ccimmon terrace; obstructions offered to
the landlords and their workers to inspect the common terrace; u.n-
authorised errection by the defendant in the common terrace area certain
· machinery and running it during nights causing disturbance to sleep of
neighbouring occupiers and also unauthorised used by the defendant of the
B water in common over-head storage tanks in the common terrace area for
his business purposes depriving· other tenants of the normal use of such
water. The defendant, however, resisted the claim for recovery of posses-
sion of the premises, made. in that suit filing a written statement thereto,
denyir.,;, the allegations of nuisance and annoyance levelled against him, his
c wife, sons and servants and urging that those allegations, even if estab-
lished, did not constitute the ground of nuisance or annoyance envisaged
under clause (c) of sub-section (1) of section 13 of the Act, .as a ground
for recovery of possession of premises from a tenent. It was also urged
therein by the defendant that the ground for recovery of possession of
D premises from a tenant under clause (c) thereof was not available to
plaintiffs, for they being usufructuary mortgagees of the building were not
'landlord' within the meaning of that expression in sub-section (1) of
section 13 of the Act as would entitle them to recover possession of
premises from a tenant. In so far as the common terrace, the defendant's
unauthorised use of which was complained of by the plaintiffs, the defen-
E dant urged therein that he being a tenant of that terrace in addition to the
premises, was entitled to put it for the use of his choice and prevent other
tenants in the building from its common use. It was further urged therein
that the £Uit having been instituted by the plaintiffs to pressurise the
defendant and extract from him higher rent for the premises was vitiated
by malafides, The trial court which tried the suit, on an appraisal of the
F oral and documentary evidence adduced by the parties, recorded its find-
ings on issues arising for its determination in that suit in favour of the
plaintiffs and against the defendant. Consequently, it decreed the suit of
the plaintiffs for recovery of possession of the premises from the defendant.
The appellate court before which the decree of the trial court was appealed
G against by the defendant, on its re-appraisal of the evidence, affirmed the
findings of the trial court and dismissed the appeal. Feeling aggrieved by
the decree of the 'rial court and its affirmation by the appellate court, the
defendant impugned the same by filing a writ petition under Article 227 of /
the Constitution before the High Court of Bombay, but that writ petition·
H was rejected by the High Court in limine. The defendant has questioned
NARPAT CHAND v. SHANTILAL MOOLSHANKAR [VENKATACHAIA, J.] 477

I in this appeal by special leave, the correctness of the decree of the trial A
court made against him for recovery of possession of the premises by th~
plaintiff, the decree of the appellate court affirming the decree of the trial
court and the order of the High Court rejecting his writ petition.

In support of the appeal, three contentions were raised before us by
Shri B.K. Mehta, the learned senior counsel for the appellant-defendant. B
But those contentions were strongly refuted by Shri U .R. Lalit, the learned
senior counsel for respondents-plaintiffs. Taking into consideration the
serious nature of the contest, we shall examine the merit in every-ene of
the contentions, rather in detail.

First of the said contentions which was urged as a legal contention
c
by the learned counsel for the appellant, was that an usufructuary
mortgagee was not entitled to recover possession of a premises from a
tenant under section 13(1) (c) of the Act pleading the ground that the
tenant or any person residing with him in such premises was guilty of
conduct which is a nuisance or annoyance to the adjoining and neighbour- D
ing occupiers, when the expression 'Land-lord' in section 13 of the Act
cannot be said to include an usufructuary mortgagee. Provisions in the Act
in so far as they become necessary for a proper appreciation of the said
contention could be excerpted at the outset.

Section 13(1) of the Act : E

"13. When landlord may recover possession.

- (1) Notwithstanding anything contained in this Act ....... a
landlord shall be entitled to recover posse5'ion of any
premises if the Court is satisfied --
F

(a) ......... .

'.b) ........ ..
G
(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 neigh-
bouring occupiers ......... .

(d) ......... .
478 SUPREME COURT REPORTS [1993] 2 S.C.R.

A (e) ..........
(f) ..........

(g) that the premises are reasonably and bona fide
required by the landlord for occupation by himself
B or by any person for whose benefit the premises
are held (or where the landlord is a trustee of public
charitable trust that the premises are required for
occupation for the purposes of the trust; or)

(h) ..........
c
(hh) ..........

(hhh) ......... .

(2) No decree for eviction shall be passed on the ground
D specified in clause (g) of sub-secfron {1) if the Court is
satisfied that, having regard to all the circumstances of the
case including the question whether other reasonable ·ac-
commodation is available for the land-lord or the tenant,
greater hardship would be caused by passing the decree
E than by refusing to pass it.

Where the court is satisfied that no hardship would be
caused either to the tenant or to the landlord by passing

F
the decree in respect of a part of the premises, the Court
shall pass the decree in respect of such part only.

Explanation - For the purposes of clause (g) of sub-
-
section {1), --

(a) ..........

G (b) the expression "landlord" shall not include a rent-
farmer or rent-collector or estate-manager;

Section 5(3) of the Act :

"5. Definitions. In this Act unless there is anything repug-
H nant to the subject or context, --
NARPAT CHAND v. SHANTILAL MOOLSHANKAR [VENKATACHALA, J.] 479

A

(3) "landlord" means any person who is for the time being,
receiving, or entitled to receive, rent in respect of any
premises whether on. his own account or on account, or
on behalf, or for the benefit of any other person or as a B
trustee, guardian, or receiver for ~ny <:>ther person or who
would so receive the rent or be entitled to receive the rent
if the premises were let to a tenant, and includes any
person not being a tenant who from time to time derives
title under a landlord and further includes in respect of
his sub-tenant, a tenant who has sub-let any premises; (and c
also includes in respect of a licensee deemed to be a
tenant by section 15A, the licensor who has given such
licence;)"

Whether the expression 'landlord' in sub-section (1) of section 13 of D
the Act cannot be said to include 'an usufructuarY mortgagee' where the
tenanted premises is the' subject of usufructuary mortgage, is the question
which requires our answer in the light of the provisions of the Act. As could
be seen from the definition of 'usufructuary mortgage' in clause (d) of
section 58 of the Transfer of Property Act, 1882 - the T.P. Act, an E
usufructuary mortgagee is a transferee of a right to possession of the
mortgaged property and the right to receive the rents and profits accruing
from such property. When a lessor of a leased property creates an usufruc-
tuary mortgage in respect of such property what he transfers under section
109 of the T.P. Act as a mortgagor in favour of the usufructuary mortgagee
includes his right to possession of such property and the right to receive F
the rents and profits accruing from it. Thus section 109 of the T .P. Act
entitles the usufructuary mortgagee frolli the lessor, as against the lessee,
for all rights which the lessor had against such lessee. From this, it follows
that tenanted premises, if is mortvge by the landlord by way of usufruc-
tuary mortgage, the usufructuary mortgagee thereunder would become G
entitled to receive the rents and profits accruing from such property in his
own right• and on his own account. Clause (3) of section 5 of the Act which.. I ,

contains the 'definition of 'landlord', states that under th.e Act 'landlord' .
means any person who is for the time being receiving or entitled to receive
rent in respect of any premises on his own account and includes any person H
I
'
.fflO SUPREME COURT REPORTS [1993] 2 S.C.R.

A not being a tenant who from time to time derives title under a landlord, ,,;;...
unless there is anything repugnant to the subject or context. There, comes 1
section 13(1) of the Act entitling landlord to recover possession of any
premises from his tenant on the ground envisaged under clause (c) thereof,
that is, the tenant or any person residing with the tenant being guilty of
B conduct which is a nuisance or annoyance to the adjoining or neighbouring
occupiers, and that section 13(1) contains nothing repugnant in its subject ~
or context which would disentitle an usufructuary mortgagee, as a landlord
of the tenanted premises to recover its possession from the tenant on the
said ground. Further, if the legislative intendment was that the usufructuary
mortgagee was not to be regarded as a landlord for recovering possession '·
c of a tenanted premises on any of the grounds envisaged under sub-section
(1) of section 13 of the Act, it would not have omitted to state so, expressly,
particularly when it had been so stated in clause (b) of the explanation to ~
sub-section (2) of section 13 of the Act, as regards 'rent farmer' or a 'rent
collector' or an 'estate manager' who would have been otherwise a landlord
D entitled to recover possession of a tenanted premises from the tenant under
clause (g) of sub-section (1) of that section.

Indeed, the decision of this Court in S.B. Abdul Azeez (By Lrs.) v. M.
Maniyappa Setty and Others, [1988] 4 SCC 727, throws full light on the
E question under consideration, for the question decided there, is virtually
identical. That question was whether an usufructuary mortgagee was en-
. titled to recover possession of a premises under section 21(1) proviso (h)
of the Karnataka Rent Control Act, 1961 - the K.R.C. Act, as a landlord
envisaged therein. In deciding that question with reference to the expres-
sion 'landlord' found in section 21 (1) proviso (h} of K.R.C. Act, the
F
definition of that expression 'landlord' found in section 3(h) of the K.R.C.
Act and the explanation to clause ( 4) found in section 21(1} proviso of
K.R.C. Act excluding a rent farmer, a rent collector and an estate manager
from being a landlord for recovery of possession of a premises from a
tenant on the' ground of bona fide use and occupation and certain
G provisions of the T.P. Act, this Court stated thus:

"It, therefore, follows that the Legislature if wanted that
a mortgagee with possession should not be equated with
the owner of the premises and should be denied the
d benefit of seeking a tenant's eviction under section 21(1)
NARPAT CHAND v. SHANTILAL MOOLSHANKAR [VENKATACHALA, J.] 481

(h), the legislature would have undoubtedly categorised a
mortgagee with possession also as one of the excluded
class of landlords for the purpos~s of section 21(1) (h) of
the Act. Obviously therefore the legislature has not
wanted a mortgagee with possession to be excluded of his
right to seek eviction of a tenant from the mortgaged
premises under section 21(1) (h) of the Act. Thirdly, a
mortgagee with possession is enjoined by section 76(a) of
the Transfer of Property Act to manage the property as
a man of ordinary prudence would manage it if it were
his own. As such the mortgagee's acts, if prudently done,
could bind the mortgagor even after the redemption of
the mortgage: A mortgagee with possession, steps into the
shoes pf the mortgagor and becomes entitled to all the
rights of the mortgagor and the only right left with the
mortgagor is the right of redemption. A mortgagee with
possession is entitled to be in possession of the mortgage
:J
property as long as it is not redeemed. If the mortgagee
with possession leases back the property to the mortgagor,
he acquires the rights of a lessor and is entitled to enforce
the terms of the lease against the mortgagor (vide
Mathura/al v. Keshar Bai,). On account of all these factors
there can be no doubt that a mortgagee with possession
stands very differently from other kinds of landlords en-
visaged under section 3(h) of the Act. He is therefore
entitled, as much as the owner himself, to seek recovery
of possession of the leased premises from a tenant for his
own bona fide requirements of use."
F
What is said by this Court in the above decision as regards the right
of the usufru~tuary mortgagee to recover possession of a premises from a
tenant as a landlord emosaged therein under section 21(1) proviso (h), in
. our view, must necessarily apply to a landlord envisaged in section 13(1)
of the Act. It •would be so because (i) that the expression 'landlord' iii
secti<Jn)3(1) (C) of the Act is not used in a context different from the one
in which the expression 'landlord is used in section 21(1) proviso (h) of the
K.R.C.· Act, (ii) that the definition of 'landlord' and explanation as to w:•i·
is not the 'landlord' are common to both the Acts and (iii) that the legal
position of an nsufructuary mortgagee under the K.R.C. Act is not different H
482 SUPREME COURT REPORTS [1993] 2 S.C.R.

A from the legal position of an usufructuary mortgagee under the Act since
the rights and liabilities of an usufructuary mortgagee concerned "in ·both
Acts are governed by the provisions of T.P. Act. Thus it becomes clear that
the expression 'landlord' in sub-section (1) of section 13 of the Act includes
an usufructuary mortgagee where the tenanted premises is the subject of
usufructuary mortgage.
B
The decision in Nana/al Girdlzarlal and Anr. v. Gu/amnabi Jamalbhai
Motonvala and Ors., 1972 (13) Gujarat Law Reporter 880 relied upon by
leaned counsel for the appellant in support of the first contention, does not
lend such support. One of the questions \vith which the Gujarat High Court
C was concerned in that decision was whether one out of several co- owners
was entitled to maintain a suit for eviction against the tenant under the Act.
In considering that question the Court took the view that the landlord
referred to in section 12 and section 13(1) of the Act was not a landlord -",
as qefined in section 5(3) but was a landlord who was entitled to possession
D of the premises on a determination of the tenancy under the ordinary law
of landlord and tenant, that is, under section 106 of the T.P. Act. It is this
view which was sought to be made use of by learned counsel for the
appellant to contend that the landlord under section 13(1) of the Act
cannot be an usufructuary mortgagee. But, the said "iew of the High Court
E that a landlord referred to under sections 12 and 13(1) of the Act is a
landlord who is entitled to possession of premises on :determination of the '"-
tenancy under section 106 of the T.P. Act, itself cannot now be good law
because of the nine-Judges' Bench decision of this Court in V. Dhanapal
Clzettiar v. Yesoda/ Ammo/, A.LR. 1979 SC 1745, where the scope of the
provisions of sections 5, 12 and 13 of the Act in the context of section 106
F of the T.P. Act is considered and held otherwise, thus :

"Adverting to the provisions of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947 it would be
found from the definition of section 5 that any person
G remaining in the building after the determination of the
lease is a tenant within the meaning of clause (11). Section
12 of the Bombay Act says that the landlord shall not be
entitled to the recovery of possession of a·ny premises so
as long as the conditions mentioned in sub-section (1) are
H fulfilled nor any suit for recovery of possession shall be
NARPAT CHAND v. SHANTILAL MOOLSHANKAR [VENKATACHALA, J.] 483

instituted by a landlord against a tenant on the happening A
of the event mentioned in sub-section (2) until the expira-
tion of one month next after the notice is served on the
tenant in the manner provided in section 106 of the
Transfer of Property Act, as required by the said sub-sec-
tion. Section 13 provides that a landlord may recover
possession on certain grounds. Is it not plain then that on
B
the happenings of the events or on the fulfilment of the
conditions mentioned in sections 12 and 13 etc. the
landlord becomes entitled .to recover possession from the
tenant, otherwise not. It will bear repetition to say that
under the Transfer of Property Act in order to entitle the c
landlord to recover possession determination of the lease
is necessary as during its continuance he could not recover
possession while under the State Rent Act the landlord
becomes entitled to recover possession only on the fulfil-
ment of the rigour of law provided therein. Otherwise not.
D
He cannot recover possession merely by determination of
tenancy. Nor can he be stopped from doing so on the
ground that he has not terminated the contractual tenan-
cy."

The frrst contention mged in support of the appeal that an usufruc- E
tuary mortgagee of tenanted premises cannot file a suit for recovery of its
possession from the tenant under section 13{1) (c) of the Act does not,
therefore, merit acceptance and is rejected.

The second contention of the learned counsel for the appellant-
defendant relates of correctness of the findings of the appellate court F
recorded respecting acts of nuisance and annoyance constituting the
ground for recovery of possession of premises by the plaintiffs from the
defendants. According to the learned counsel,, those findings, not having
beeri based on the evidence on record, become unsustainable. We are
unable to fmd any merit in this contention. The findings as to the acts of G
nuisance ' 1d annoyance attributable to the defendant and the persons who
were residing in the premises are (i) that the defendant, who was a tenant
in a premises (tenament) in the storeyed building, erected a Rangeen Mill
(Textile Printing Mill) on the terrace of the storeyed and ran it during
nights so as to make the occupiers of the adjoining and neighbouring H
484 SUPREME COURT REPORTS [1993] 2 S.C.R .

A tenaments in the storeyed residential building suffer the vibrations and
noise in the building arising on account of the running of the Mill and loose
their quiet and sleep during night; (ii) that the defendant unauthorisedly
•
utilised the water stored in the common over-head tanks on the terrace,
meant for domestic use of all the occupiers of the tenaments in the
B building, for running his run Rangeen Mill - a non-domestic purpose; (iii)
that the defendant and the persons residing with him in the premises had
often removed the radio aerials and T.V. antenas of the occupiers of the
adjoining and neighbouring tenaments which had been fixed above the
common terrace of the building; (iv) that the defendant and the persons
residing in the premises were wrongly preventing the plaintiffs and their
c workers in reaching the common terrace for repairs of radio aerials, T.V.
antenas, telephone lines and the like of the occupiers of the neighbouring
tenaments in the building by blocking its staircase.

These finding of the lower appellate court, it cannot be said, are not
D supported by the evidence on record of the case. In fact, some of the
findings are, to a great extent, based on the facts which were admitted by
the defendant himself. Besides, tlie findings receive support from the
evidence given in the case by the occupiers of the adjoining and neighbour-
ing tcnaments of the same building. The defendant and the persons resid-
ing with him in the premises have committed some of the acts respecting
E which the aforesaid findings are recorded by the appellate court because
of the defendant's unfounded claim that he had taken the terrace on lease
independently of the premises in which he was an occupant and as such
was not only entitled to its exclusive use but also had the right to prevent
the neighbouring occupiers of the tenaments in the building from its use.
F The trial Court as well as the appellate court, on examining the claim
put-forth by the defendant, have found on the basis of material on record,
that it was a false claim and the defendant had not taken on lease the
disputed terrace, as was pleaded by him. Therefore, as seen from the
judgment of the appellate court, its findings in relation to the aforesaid acts
of the defendant and persons residing with him in the premises are based
G on appreciation of ample evidence that was on record and the same cannot
be said to have been based on no e\idence, or even improper appreciation
of evidence as contended for. Thus, we are unable to see any justification
in this Appeal by Special Leave, to interfere with such findings of facts
recorded by the appellate court virtually affirming the findings of fact
H
NARPAT CHAND v. SHANTILAL MOOLSHANKAR [VENKATACHAIA, J.] · 485·

recorded by the trial court. The second contention raised in support of the A
appeal must, therefore, fail. It is accordingly rejected.

The third and the last contention urged in support of the appeal was
that the acts found to have been committed by the appellant-defendant and
the persons residing with him in the premises, even if are true, they could
not have been regarded as acts amounting to nuisance or annoyance
B
forming a ground for recovery of possession of a premises from the tenant
under section 13(1) (c) of the Act. In support of the said contention,
reliance was placed on decisions of the Gujarat High Court in Dhabhi Lalji
Ka/idas v. Ramnik/a/ Somchand Mehta, 1975 (16) Gujarat Law Reporter,
- 824 and Gaurishanker @ Babula/ Govindji v. Bhikha/a/ Chhaganlal & Ors., c
1977 (18) Gujarat Law Reporter, 805. This contention, in our view, again,
is devoid of merit. The decisions relied upon also do not support the
contention.

There are no statutory .definitions of 'nuisance' or 'annoyance' which D
under section 13(1) (c) of the Act constitute a ground for recovery of
possession by landlord of a premises in the occupation of tenant. In the
case with which we are concerned, the acts of nuisance or annoyance
complained of are committed by the tenant and persons residing with him
in the premises which is a tenament (flat) lying amidst other tenaments E
(flats) of the one and same storeyed building. The acts of the defendant or
persons residing with him in the tenanted premises which are found as acts
causing nuisance or annoyace to adjoining or neighbouring occupiers,
cannot fall short of being acts of nuisance or annoyance if regard is had to
their nature, intensity and duration and the consequential ill-effects which
might have been produced by them on the normal living of such occupiers. F
Further, when the particular acts of the defendant or persons residing with
him in the premises (flat) of a storeyed building, said to have caused
nuisance or annoyance to the occupiers of adjoining or neighbouring
occupiers of tenaments (flats) in the very same storeyed building are seen,
they cannot make us think that they were not clear acts of nuisance or G
annoyance envisaged under section 13(1) (c) of the Act because of the
intolerable inconveniences, sufferings, humiliations which must have been
caused to the adjoining or neighbouring occupiers, due regard being given
to the locality of the storeyed building, the class of the people living in the
tenaments of the storeyed building and the nature of living to which they H
486 SUPREME COURT REPORTS [1993] 2 S.C.R.

A were accustomed. Even otherwise the acts, said to have been conmritted
by the defendant and persons residing with him in the premises when are,
as stated, found by the fact finding courts to have amounted to acts of
nuisance or annoyance entitling the plaintiff under section 13(1) (c) of the
Act to recover possession of the premises from the defendant and when
B the High Court has refused to interfere with such finding in exercise of its
writ jurisdiction there could be no justification whatever for us to interfere
with the same in this appeal under Article 136 of the Constitution.

The decision in Dhabhi Lalji Kalidas v. Ramniklal Somchand Mehta,
(supra) relied .upon to support the tlrird contention is a case decided hy
C Single Judge of the Gujarat High Court. The learned Single Judge who
examined in that case the question whether the use by washerman, who
was tenant of a premises, some chemicals for washing clothes in a tenanted
premises could have amounted to act of nuisance or annoyance to adjoin-
ing or neighbouring occupiers as entitling the landlord to recover posses-
D sion of tenanted premises under section 13(1) (c) of the Act, held that the
ill-effects produced on adjoining or neighbouring occupants cannot be
found out in the absence of evidence of chemical experts and therefore,
the ground for recovery of possession of tenanted premises under section
13(1) (c) of the Act, was unavailable. We are unable to see, how this
decision could help the contention of the appellant under our considera-
E tion. The decision in Gaurishanker (supra) relied upon to support the third
contention is again that of a Single Judge of the Gujarat High Court. It was
a case where the learned Judge )l'lis.concerned with the question whether
a quarrel in the household of a tenant could be a ground for eviction of a
tenant under section 13(1) (c) of the Act. The learned Judge, who held
F that quarrels in a domestic household of a tenant can never constitute a
-
nuisance or annoyance within section 13(1) (c) of the Act pointed out that
nuisance or annoyance contemplated under section 13(1) (c) of the Act as
ground for eviction of tenant from a premises must be of a serious char-
acter in nature, intensity and frequency. We do not see how this decision
could advance the contention of the appellant now under consideration. In
G fact, in the case on hand, we have held that the courts below, having regard
to the nature, intensity and duration of the acts complained of and their
ill-effects on the normal living of adjoining or neighbouring occupiers have
rightly found them as acts of nuisance or annoyance envisaged under
H section 13(1) (c) of the Act.
t
NARPAT CHAND v. SfµNTILAL MOOLSHANKAR [VENKATACHALA, J.] 48T

Hence, the third and the last contention urged in support of the A
appeal, being also devoid of merit, is rejected.

In the result, this Appeal fails and is dismissed with costs. The
advocate's fee payable by the appellant-defendant to respondents-plaintiffs
is fIXed at Rs. 2,000.

T.N.A. Appeal dismissed.

-