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1967 DIGILAW 226 (ALL)

Ganga Prasad v. Chaube Jagdish Prasad

1967-07-17

S.N.SINGH

body1967
JUDGMENT S.N. Singh, J. - These two appeals arise out of two original suits Nos. 323 of 1951 and 449 of 1951. Suit No. 323 of 1951 was in respect of a tin-shed and Kothri for which plaintiffs had claimed a declaration of title and possession. Suit No. 449 of 1951 was for the ejectment of the defendant from a Tall which was alleged to have been let out by the plaintiffs to the defendant. Both these suits were decreed by the trial court for a declaration of plaintiffs' title in one case and for the ejectment of the defendant in the other and the two decisions of the trial court were affirmed in appeal by the lower appellate court 2. Brief facts giving rise to the two suits are that admittedly the plaintiffs respondents owned a Tall, a tin shed and a Kothri. A dispute arose between the parties in respect of the tin shed and Kothri. Both the parties claimed to be in possession of the tin shed and the Kothri, with the result that the tin shed and the Kothri were attached under Section 145 of the Criminal Procedure Code and the Magistrate not having come to the conclusion as to which party was in possession of the same directed the parties to get declaration of their right to possess from the civil court. Consequent upon this direction Suit No. 323 of 1951 was instituted by the plaintiffs for the declaration of their title and possession. 3. This suit was contested by the defendants on the ground that they were in possession of the Kothri and the tin shed as tenants of the plaintiffs. Their case was that they were the tenants not only of the Tall but also of the tin shed and the Kothri in dispute. During the pendency of this suit the plaintiffs filed the other suit No. 449 of 1951 for the ejectment of the defendants from the Tall on the ground of non-payment of rent, denial of the title of the landlord and also on the ground that the defendants had obstructed the use of the plaintiffs in respect of their Kothri and tin shed and thus affected adversely and substantially the interest of theirs in the Tall and further allegation was made that the defendants' act amounted to nuisance also as such they were liable to ejectment from the Tall. Claim for recovery of damages on account of removal of certain articles from the Kothari and the tin-shed and for recovery of arrears of rent and for damages for use and occupation were also made. 4. This suit was contested by the defendant who pleaded that they were not only the tenants of the Tall but were also the tenants of the Kothari and tin-shed and that they never trespassed over the Kothari and the tin-shed nor did they act in a manner which amounted to nuisance. It was also pleaded that they never denied the plaintiffs' title nor committed nuisance nor did they commit default in payment of the rent. Lastly it was pleaded that the notice of ejectment was invalid and the plaintiffs were not entitled to any damages. 5. Talking Second Appeal No. 390 of 1961 it will be seen that the sole question for determination in this case was as to whether the case of the plaintiff that the Kothri and the tin-shed were in possession of the plaintiff all along and had not been let out to the defendants was correct or the defence case that the Kothri and the tin-shed were let out to the defendants along with the Tall and they were in occupation thereof as tenants was correct. The question involved in this appeal is a question of fact and on this question of fact that the concurrent decision of the two courts below is to the effect that the Kothri and tin-shed were in possession of the plaintiff and had not been let out to the defendants as alleged by them. On the concurrent findings of fact recorded learned counsel for the appellants could not assail the decisions of he two courts below. However, he tried to get a document admitted to show that the finding of the lower appellate court that the tin-shed and the Kothari had been constructed after the commencement of the defendants tenancy was wrong but the document has not been admitted by me as such the concurrent finding of fact of the two courts below concluded the appeal. No question of law arises and the appeal has to be dismissed. 6. Accordingly I dismiss Second Appeal No. 390 of 1961 with costs. 7. So far as Second Appeal No. 150 of 1961 is concerned learned counsel for the appellant has urged two points. No question of law arises and the appeal has to be dismissed. 6. Accordingly I dismiss Second Appeal No. 390 of 1961 with costs. 7. So far as Second Appeal No. 150 of 1961 is concerned learned counsel for the appellant has urged two points. His first contention is that the two courts below have erred in holding that the plaintiffs were entitled to sue for the ejectment of the defendant without the permission of the District Magistrate in view of the fact that their case was covered by Section 3(d) of the Rent Control and Eviction Act. Secondly the validity of the notice was challenged. It was urged that the notice Ext. 3 on the record did not determine the tenancy of the defendant as such the suit for ejectment could not be maintained. In support of this contention of his the learned counsel has relied on a Full Bench decision of this Court - Bradley v. Atkinson, I.L.R. Alld. 899 and Ahmed Ali v. Mohd. Jamal Uddin, A.I.R. 1963 Alld. 581. 8. I have considered both these submissions but in my opinion they lack force. As regards the first contention I find that the lower appellate court has relied on a decision of this Court in the case of Mst. Sunder v. Lalta Prasad, A.I.R. 1956 Alld. 211, wherein it was observed by a learned single Judge of this Court as follows:- "The act of ill treating, abusing and beating the landlord who happens to be an old lady and who is residing in part of the same house constituted a nuisance on the part of the tenant." With respect I am in agreement with this enunciation of the law made by the learned Judge. The Dictionary meaning of the word 'nuisance' as found in the Law Lexicon of British India by Mr. Aiyar is as follows, "The term "nuisance" means literally annoyance; anything which works hurt, inconvenience, or damage, or which essentially interferes with the enjoyment of life or property." 9. Looking to the meaning of the word 'nuisance' and the facts of this case it is clear that the defendant who was not really tenant of the adjoining portion of the Tall quarrelled and asserted title in respect of the other portion belonging to the landlord. Looking to the meaning of the word 'nuisance' and the facts of this case it is clear that the defendant who was not really tenant of the adjoining portion of the Tall quarrelled and asserted title in respect of the other portion belonging to the landlord. The regular quarrel in respect of the portion of the premises which was not let out to the defendant would amount to nuisance as contemplated by Section 3 (d). In my opinion the act done by the defendant in this particular case would also bring the case of the defendant in the latter part of Section 3 (d) of the Rent Control and Eviction Act which is as follows: "That the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the landlord's interest therein." 10. The assertion of the defendant that the Kothri and the tin-shed were also the part of the tenancy to my mind is an act which is likely to affect adversely and substantially the landlord's interest in the premises let out to the defendant. In this view of the matter the case of the plaintiffs is covered by the first as well as the latter part of Section 3 (d) of the Rent Control and Eviction Act. The contention of the learned counsel that unless some act in respect of the Tall itself was done it could not be said that the tenant has created a nuisance or done anything which would affect adversely and substantially the landlord's interest therein has not appealed to me. In my opinion on the finding of fact recorded by the two courts.below that although tin-shed and Kothri was not part of the tenancy still the defendant contended the same to be a part of the tenancy brought his case within the four corners of Section 3 (d) of the Rent Control and Eviction Act. 11. Now coming to the second point raised by the learned counsel about the invalidity of the notice it has been contended on behalf of the respondents that the notice Ext. 3 clearly showed the intention of the plaintiffs to terminate the tenancy of the defendant. 11. Now coming to the second point raised by the learned counsel about the invalidity of the notice it has been contended on behalf of the respondents that the notice Ext. 3 clearly showed the intention of the plaintiffs to terminate the tenancy of the defendant. It was further submitted that in any case this was a notice to quit which satisfied the requirements of Section 111 of the Transfer of Property Act. Reliance was placed on a Division Bench decision of this CourtRam Chandra v. Lala Dulichand, A.I.R. 1958 Alld. 729 Further it was argued that the cases cited by the learn-ed counsel for the appellant were distinguishable and did not apply to the facts of the present case. 12. I have looked into the various decisions cited by the learned counsel for the parties. In my opinion the case of Ram Chandra v. Lal Dulichand, A.I.R. 1958 Alld, 7299 clearly supports the contention of the learned counsel for the respondents. The cases cited by the learned counsel for the appellant are distinguishable. The operative portion of the notice in the present case is as follows: "I have, therefore, to ask you to pay up the arrears of rent clue and after vacating the portion of the Tall in your tenancy, deliver possession thereof to my said clients on the expiry of 30th June, 1951; otherwise my instructions are to take legal proceedings in the matter and that without any further reference." 13. This is a clear notice to quit and it complies with the provisions of Section 106 as well as Section 111 (h) of the Transfer of Property Act. In view of what has been said above none of the two points raised have any force. 14. In the end it was submitted that in case the appeals were being dismissed the appellants may be allowed reasonable time to I vacate the premises in suit. The request is reasonable. I think justice will be met by allowing three months time to vacate the premises provided the entire rent for the period allowed to be occupied is paid within a period of one month. 15. For the reasons given above these appeals fail and are hereby dismissed with costs. The request is reasonable. I think justice will be met by allowing three months time to vacate the premises provided the entire rent for the period allowed to be occupied is paid within a period of one month. 15. For the reasons given above these appeals fail and are hereby dismissed with costs. The defendants appellants will not be ejected from the Tall in dispute for a period of three months from today provided they pay rent for these three months within t period of one month from today to the plaintiffs respondents or deposit the same in court. Appeals dismissed.