S. K. Kapur, J. ( 1 ) THIS civil revision undersection 35 of the Delhi and Ajmer Rent Control Act, 1952, is directedagainst the judgment of Senior Subordinate Judge dated 26/09/1960. ( 2 ) THE premises in question is situate in Deputy Ganj, Sadar Bazar,delhi. The petitioner Niadar Mal is the landlord of the said premises andrespondents Uggar Sain and Padam Sain who are father and son respectively are the joint tenants with respect to a part of the aforesaid premises. The petitioner landlord filed a suit for ejectment against the respondenttenants mainly on three grounds- (1) that the conduct of the tenants is such that it is a nuisance tothe other occupiers of the same premises and they are therefore liable to beevicted under section 13 (1) (j) of the said Act ; (2) that the tenants have acquired other premises and the plaintiffis therefore entitled to a decree for ejectment under section 13 (l) (h) ofthe said Act ; and (3) that the defendants have been causing substantial damage tothe property. Before me, however, only the first two grounds have been pressed bymr. D. K. Kapur, the learned counsel for the petitioner. There was aprevious litigation between the parties and it is necessary to set outcertain facts relating to that as one of the principal argument by thelearned counsel for the respondents has been that the judgment given inthe previous case operates as res judicata against the petitioner. Thepetitioner filed a suit against the respondents with respect to the samepremises claiming a decree for ejectment and arrears of rent. The eject-ment was sought inter alia on the ground that the conduct of the defendantswas a source of nuisance and cause of annoyance to the occupiers of otherportions of the house in as much as they had closed the door leading to thecourt-yard, latrine and bath-room and did not allow the occupiers of otherportions to make use of them. The respondents having acquired anotherresidential accommodation was not made a ground for ejectment. It maynot be out of place to mention that it has not been disputed that theentire ground floor except one room is in occupation of the respondents. The respondents having acquired anotherresidential accommodation was not made a ground for ejectment. It maynot be out of place to mention that it has not been disputed that theentire ground floor except one room is in occupation of the respondents. By judgment dated 26/12/1956, the learned Subordinate Judge1st Class dismissed the suit for ejectment and inter alia held that (1) it wasimperative on the plaintiff to show that the said bath-room and latrine onthe ground floor were not in the tenancy of the defendants or in thealternative the bath-room and latrine were jointly used by the tenants onthe ground floor, (2) the defendants had categorically stated that they didprevent Munshi Ram the occupant of a room in the ground floor frommaking use of the bath and the latrine but the respondents conduct couldamount to nuisance if eiter the bath or the latrine were not in their tenancyor that they were to be used by the tenants of the ground floor and (3)the plaintiff had failed to prove any of the two essential factors and thetenants conduct could not therefore be said to amount to nuisance orannoyance to the other occupiers of the building. The petitioner went upin appeal and during the pendency of the appeal there was a compromisebetween the parties and the petitioner made a statement before the learnedsenior Subordinate Judge stating that he would have a new door openedfrom the road side for the other tenants to enter the latrine, and theywould have no right to go to the latrine through the compound. Heprayed in that statement for being allowed to withdraw the appeal. On 31/12/1957, the learned Senior Subordinate Judge by his orderdismissed the appeal as withdrawn. The order of the learned Seniorsubordinate Judge was as under :-"the parties have arrived at a compromise as a result of whichthe appeal has been withdrawn and is hereby dismissed. But theparties will be bound by the ether terms of compromise regarding thelatrine. The parties are left to bear their own costs of appeal. "after this compromise was entered into the petitioneralleges to have made an application. Exhibit P. 6, to the Municipalauthorities to allow him to open the door from the road side but thepermission was not granted. Upon the refusal of said permission thepetitioner gave notice to the respondents intimating to them that thepermission had been declined. "after this compromise was entered into the petitioneralleges to have made an application. Exhibit P. 6, to the Municipalauthorities to allow him to open the door from the road side but thepermission was not granted. Upon the refusal of said permission thepetitioner gave notice to the respondents intimating to them that thepermission had been declined. The trial Court came to the conclusionthat the ground of nuisance had been raised in the previous suit anddecided against the landlord-petitioner and therefore operated as resjudicata against him. ( 3 ) MR. Dalip Kapur appearing for the petitioner has raised the following contentions : (1) the tenants-respondents had admitted that they werenot allowing the use of the latrine and bath to the other occupants of thehouse and consequently the Courts below should have held that it constituted nuisance or annoyance within the meaning of section 13 (1) (j) ofthe said Act ; and (2) the appellate Court while discussing issue No. (1)namely "whether the plaintiff has sued for partial premises, if so, what isits effect", came to the conclusion that the bath-rooms and latrines were nota part of tenancy but were only being allowed to be used by the respondent-tenants and yet while discussing nuisance decided against the petitio-nor only on the ground that the solitary" evidence of the party was notenough to prove nuisance. Mr. Kapur submits that on the admission bythe respondents themselves the Court should have come to the conclusionthat the allegation of nuisance stood establishedand should have passed adecree for ejectment, and (3) the defendant-respondents having builtanother house they were liable to be evicted under section 13 (l) (h) of thesaid Act. ( 4 ) MR. Patney the learned counsel for the respondents on the otherhand submits that (a) the judgment in the previous suit operated as resjudicata so far as the issue of nuisance or annoyance is concerned, (b) thedefendant-respondents no doubt admitted that they did not allow the otheroccupants to use the latrine or the bath-room, but in view of the judgmentin the previous suit and the statement of the appellant. Exhibit D. 2,dated the 31/12/1957 he had the right to stop the other occupants from passing through the compound and consequently from using thelatrine and bath-room, (e) the plea regarding the respondent having builtor acquired another residential accommodation was available to theappellant at the time of filing the first suit and the right of the appellantto raise the question in the present suit was barred on the principles ofconstructive res judicata and (d) that the other house was built in 1949 bypadam Sen one of the joint tenants and was rented out immediately on itscompletion. The appellant was not entitled to a decree for ejectment onthis ground because- (i) The house was never available for occupation by the respondents: (ii) It was built by one of the two joint tenants and consequentlyit could not be said "that the tenant has built, acquired vacant possessionof, or been allotted a suitable residence. "according to Mr. Patney the appellant in his suit had not evenalleged that the defendant-respondent had built a "residential premises"or that it was a suitable residence. It was for the appellant to allege andprove that the tenants had built or acquired a suitable residence. ( 5 ) I will deal with the point in the older in which they have beenset out. Mr. Kapur has drawn my attention to Hill and Redman s Lawof Landlord and Tenant, 11th edition, pages 219, 220 and particularly thepassage at page 219 reading as under :- "where the covenant is against any act which may lead to annoyance, nuisance or damage", it is wider and is broken by anything whichdisturbs the reasonable peace of mind of an adjoining occupier. Itneed not amount to physical detriment to comfort, nor need theadjoining occupier be a tenant of the same lessor. "mr. Kapur further relies on the illustrations given at page 220 of nuisance or annoyance which would constitute breach ofcovenant against causing nuisance or annoyance and submits that eventhe establishment of a hospital for outdoor patients is breach of such acovenant if sensible people feel a reasonable apprehension of risk ofinfection or interference with the pleasurable enjoyment of their housesfor ordinary purposes. Mr. Kapur also places reliance on Ram Labhaya v. Dhani Ram, wherein it was held that a mere encroachment of a part ofthe building may in certain circumstances amount to a nuisance. Term"nuisance" is incapable of exact and exhaustive definition. Mr. Kapur also places reliance on Ram Labhaya v. Dhani Ram, wherein it was held that a mere encroachment of a part ofthe building may in certain circumstances amount to a nuisance. Term"nuisance" is incapable of exact and exhaustive definition. The word"nuisance" Is derived from trench word "nuire which means "to injure,hurt or harm. " According to Shorter Oxford Dictionary it means "anything injurious or obnoxious to the community, or to the individual as amember of it, for which some legal remedy may be found. "literallyanything that causes annoyance or that works hurt or injury, harm orprejudice to an individual or the public or anything wrongfully done orpermitted which injures or annoys another in the legitimate enjoymentof his legal rights would constitute nuisance. In short anything donewhich unwarrantably affects the rights of the others, endangers life orhealth, give offence to the senses, violates the laws of decency or obstructsthe comfortable and reasonable use of property may amount to nuisance. I do not wish to say that every inconvenience, discomfort or annoyanceis sufficient to constitute a nuisance. No precise rule can be laid down asto the degree and every case must be decided on its own particular factsgenerally speaking, however, to constitute nuisance the injury causedmust be real and not fanciful or imaginary. It mast not be such as resultsonly in a triffling inconvenience. A well kept vegetable shop near. acostly dwelling house or any other business which is apt to attract largenumber of orderly customers may constitute an undersirable neighbourbut it may in all cases be nuisance even if the value of the property incertain repects, is affected. Such may be the natural and necessary consequences of living in a compactly built city and do not like smoke aridoffensive smell annoy everyone, but only those whose taste makes suchmatters repulsive to them. Similarly disregard of cannons of aestheticism may be annoying to some yet it may be difficult to hold it as constituting nuisance or annoyance. What then is the meaning to be given tothe term nuisance or annoyance under section 13 (1) (j) of the Delhiand Ajmer Rent Control Act. To attempt to lay down a general princpleto be observed in all cases would be a task impossible of achievement. What then is the meaning to be given tothe term nuisance or annoyance under section 13 (1) (j) of the Delhiand Ajmer Rent Control Act. To attempt to lay down a general princpleto be observed in all cases would be a task impossible of achievement. Iwould only say that if the other occupants of the premises were stoppedby the respondents from using the bath-room and the latrine which theyare entilled to use, it would certainly be affecting prejudicially andunwarrantably the rights of such occupants and constitute both nuisanceand annoyance within the meaning of the said provision. If, thereforethe matter stood at that I would have held that the petitioner wasentitled to succeed on the ground that the conduct of the tenants wassuch that it was nuisance or caused annoyance to the other occupiers ofthe same permises. The matter however, does not end here and in myopinion the learned counsel for the respondents is right when he says thateither on the principle of res judicata or on the principle of estoppel, thepetitioner cannot be permitted to raise this question in the present suit and that matter stands concluded by the earlier judgment dated 2 6/12/1956, (Exhibit D. 3) and the statement of the petitioner beforethe learned Senior Subordinate Judge dated the 31/12/1957 (Exhibit D. 2 ). In answer to this contention Mr. Kapur submits thatnormally the petitioner may have been bound by the judgment and thestatement but in the circumstances of the present case he is not becausehe did all that was possible to have a door opened in the street, made application for the purpose to the Municipal Committee and pursued the sameproperly but the permission was refused. Mr. Kapur referring to Premparkash v. Mohan Lal submits that a decree based on a compromiseis like a contract and can be set aside on that ground. Short answer to. Mr. Kapur s submission is that the petitioner neither raised this questionin the plaint nor does it appear to have been urged before the. Courtsbelow. Assuming that the decree passed by the Senior Subordinate Judgeand based on the compromise could be set aside on the same grounds onwhich a contract can be set aside, still the petitioner was expected to pleadsuch facts as entitle him to disregard the compromise decree and to askfor the same being set aside. Courtsbelow. Assuming that the decree passed by the Senior Subordinate Judgeand based on the compromise could be set aside on the same grounds onwhich a contract can be set aside, still the petitioner was expected to pleadsuch facts as entitle him to disregard the compromise decree and to askfor the same being set aside. In the circumstance I hold that the statement of the petitioner and the consent decree passed by the Senior Subordinate Judge do raise an estopel between the parties, and the petitionercannot be permitted to reagitate the matter, in the present suit It is wellestablished that a judgment based onconsent is as much intended to puta stop to litigation between the parties, as a judgment which results fromthe decision of the Court after the matter has been fought out to the endin so far as the matter is actually dealt with by the consent decree. Thequestion in all such cases is whether the consent decree did settle theissue between the parties. Reference to the order of the learned Seniorsubordinate Judge which was been reproduced above would show thatthe question, whether or not the other occupants could be permitted topass through the compound and use the latrine and bath room, wasfinally settled between the parties. In the circumstances the respondentswere entitled to stop other occupants from passing through the compoundand consequently it cannot be said that the respondents were obstructing theother occupants in the legitimate enjoyment of their legal rights. If theother occupants had no right to pass through the compound or use latrineand the bath-room, the obstruction by the respondents cannot constitutenuisance or annoyance within the meaning of section 13 (1) (j) of the saidact. In this view I need say no more on the second contention of Mr. Kapur regarding the effect of the admission by the respondents that theywere in fact obstructing the other occupants from using the latrine andbath. ( 6 ) NOW I come to the third contention of Mr. Kapur that the defendant-respondents having built another house they were liable to be evictedunder section 13 (l) (h) of the said Act. I might here deal with the objection of the learned counsel for the respondent that the petitioner cannot. raise this question as his right to do so is barred on the principle of constructive res judicata. Kapur that the defendant-respondents having built another house they were liable to be evictedunder section 13 (l) (h) of the said Act. I might here deal with the objection of the learned counsel for the respondent that the petitioner cannot. raise this question as his right to do so is barred on the principle of constructive res judicata. Before the petitioner can be held estopped from raisingthe plea the respondents, are bound to show that the facts on which muchplea might have been raised by the petitioner were with in his knowledgeat the time of the institution of the first suit. in case such facts were notwithin his knowledge at the time of the former suit, it cannot be saidthat the party may have raised it in the earlier suit. The want of know. ledge, however, must be about facts, and a plea not raised owing to wrongview of law cannot be permitted to be raised in subsequent litigationreference is made to Mithoolal Girdharilal v. Babu Jainaryan Bahadurlaland others where in it has been held that a plea which the plaintiff in thesubsequent suit ought to have taken in the previous suit is barred and thefact that he had no knowledge of the fact which he ought to have pleadedis if no avail if with due diligence he could have discovered the fact inthe previous suit. In Fakir Chand v. Ekkari Sarkar, it was held that theplaintiff being unaware of the deed of gift, and there being no circumstancewhich would put the plaintiff on enquiry as to the deed of gift, or whichwould lead the plaintff to the discovery thereof at the time he institutedthe first suit, the plaintiff was not hit by the rule of constructive res judicatathere is nothing in the present record to show that at the time of institut-ing the previous suit the petitioner knew about the respondents havingbuilt a house. There is also nothing to show that there were any suchcircumstances as would put the plaintiff to an enquiry or if the petitionerhad exercised due diligence he might have obtained knowldge of the factthat the respondents had built or acquired another residential accommodation. I do not, therefore, agree with the objection of the learned counselfor the respondents. Again the fact that only one of the two joint tenantsbuilt the house may not be conclusive against the petitioner. I do not, therefore, agree with the objection of the learned counselfor the respondents. Again the fact that only one of the two joint tenantsbuilt the house may not be conclusive against the petitioner. There maybe cases where house built or acquired by one of the joint tenants may beavailable to the other and in those circumstances it may be possible to contend that the other joint tenant has also acquired possession of suitableresidence. The lower appellate Court has come to the conclusion that sincethe house built by Padam Sen respondent is not available to the defandantrespondents for residential purposes it cannot be held that they have builtor acquired vacant possession of a suitable residence for them. The respondent Padam Sen appeared as a witness and stated that he had bulit a housein 1949 and let out the same to the tenants at that very time and the samewas not available for his residence. The learned counsel for the petitionersubmits that where a tenant has built a residence for himself it is immaterial for the purposes of section 13 (1) (h) whether or not it is suitable forresidence or whether or not he has acquired vacant possession of the same. According to the learned counsel even if the words " suitable residence have to be read with " built " also it is not necessary that the tenantshould have acquired vecant possession. It is enough if he has built suitableresidence. Merely because a tenant has built a house, would in my opinionnot provide a ground for ejectment within the meaning of section 13 (1) (h)of the Act for if that wide construction were placed on the section thetenant would be liable to eviction even if he built a house any where inindia. The words " suitable residence " must therefore be read with allthe terms namely built acquired vacant possession of, or beenallotted . ( 7 ) THE learned counsel for the respondents submits that the petitionerin his plaint did not even allege that the respondents had built a residentialhouse or that it was suitable for their residence. Submits the learnedcounsel that unless the question of acquisition of a suitable residencehad been put to issue at the instance of the petitioner the respondentswere not obliged to lead evidence or prove that the premises were not suitable for their occupation. Mr. Submits the learnedcounsel that unless the question of acquisition of a suitable residencehad been put to issue at the instance of the petitioner the respondentswere not obliged to lead evidence or prove that the premises were not suitable for their occupation. Mr. Kapur on the other hand contends that thepetitioner alleged in the plaint that the respondent had built a house andlet it out. In view of this allegation made in the plaint and in view of theadmission by respondent No. 2 Padam Sen, it was for the respondents toprove that that house was not suitable for their residence or that thoughbuilt by respondent No. 2 it was not available for occupation to respondentno. 1 who is the father of respondent No. 2 Mr. Kapur submits that thesefacts were within the special knowledge of the respondents and, it was,in view of section 106 of the Indian Evidence Act, for them to prove thatthe house was not suitable and or available. The learned counsel submitsthat respondent No I did not even appear in the witness box and everyinference should be drawn against him. He relies on Governor Genral in council and others v. Mahabir Ram and another Rarnkrishna Ramnathshop v. Union of India Indian Trade and General Insurance Co. Ltd. v. Union of India", and submits that just as in the case of entrustment ofgoods to railway for transporation it is for the railway to place all thematerial before the Court showing how the goods were dealt with, it was forthe respondents to place all the materials before the Court, including theiraccount books showing who built the house and who provided the financefor the same. It is no doubt true that onus to prove facts within specialknowledege of a party must be on him but in a case like the present theplaintiff must first allege that grounds exist entitling him to ajudgment. It was in my view for the plaintiff to allege that the respondents have builtor acquired vacant possession of a suitable residence for themselves andare therefore liable to be evicted. The petitioner did not, in myopinionallege all the facts necessary to constitute a ground for eviction of therespondents. All that he said in the plaint was that respondents havebuilt a house and let it out. It was for the petitioner to allege that thehouse was suitable for their residence. The petitioner did not, in myopinionallege all the facts necessary to constitute a ground for eviction of therespondents. All that he said in the plaint was that respondents havebuilt a house and let it out. It was for the petitioner to allege that thehouse was suitable for their residence. In the absence of a proper pleaby the petitioner it would not be open to me to investigate whether allthe requirements of section 13 (l) (h) of the said Act were met and. whetherthe construction of a house by respondent No. 2 entitles the petitioner toa decree for eviction. In Nevile v. Hardy the Court was concerned withclause (d) of sub-section (1) of section 5 of the Increase of Rent andmortgage Interest (Restrictions) Act, 1920, which enabled an order orjudgment for the recovery of possession of any dwelling house to which theact applied to be made where " the dwelling house is reasonably requiredby the landlord for occupation as residence for himself. . . . . . . . . . . . . . . andthe Court is satisfied that alternative accommodation, reasonably equivalent as regards rent and suitability in all respects, is available. " It wascontended on behalf of the landlord that the onus was on the lessee. Petersov J. said "but that would mean that the lessee had to satisfy thecourt that alternative accommodation reasonably equivalent as regards rentand suitability in all respects, is not available. " Those, however, are not. the words of the clause ; the words are that alternative accommodation" of the kind specified is available. " In my opinion, therefore, it is forthe landlord who seeks possession to sattsfy the Court by positive evidencethat alternative accommodation of the kind specified " is available ". ( 8 ) MR. Kapur has drawn my attention to Bazaigetee v. Hampson a. deeision which was referred to before Peterson J. in the arguments by theplaintiffs counsel. The provision which fell for consideration in that casewas "the premises are reasonably required by the landlord for the occupation of himself. . . . . . and the court after considering all thecircumstances of the case, including especially the alternative accornmodation available for the tenant, considers it reasonable to make such anorder or give such judgment, Avory J. observed, "the tenant cannot sitdown and do nothing but wait until the landlord has found alternativeaccommodation for him. . . . . . and the court after considering all thecircumstances of the case, including especially the alternative accornmodation available for the tenant, considers it reasonable to make such anorder or give such judgment, Avory J. observed, "the tenant cannot sitdown and do nothing but wait until the landlord has found alternativeaccommodation for him. The onus lies on the tenant to show that he hasdone his best to secure alternative accommodation". In my opinionhaving regard to language of section 13 (l) (h) of the said Act it is for thelandlord to show that the tenant has built or acquired vacant possessionof a suitable residence". The landlord not even having alleged that thehouse built was "suitable residence" the point must be decided againstthe. landlord. In view of this it is not necessary to go into the questionwhether it was for the petitioner or the respondents to prove the nature ofinterest, if any, of respondent No. 1 in the house or whether non-availability of vacant possession provided a good defence to the tenants. ( 9 ) I must also notice another submission made on behalf of therespondents. It is contended that the lower appellate Court has onevidence found that only one of the two pint tenants have built the house. It cannot, therefore, be said that "the tenant has * * * built * * *a suitable residence" within the meaning of section 13 (l) (h) because incase of joint tenancy "tenant" in the said provision must mean all thejoint tenants. Regarding acquisition of vacant possession, the learnedcounsel submits that it has been found by the lower appellate Court thatthe house is not vacant and consequently section 13 (l) (h) of the said Actdoes not in any manner aid the petitioner. In my opinion it is notnecessary to decide these questions also, since the petitioner did not allegethat the house built by respondent No. 2 is suitable for the residence, ofthe tenants. In the result the petition fails and is dismissed. There will, however,be no order as to costs.