JUDGMENT SINHA, J. 1. The facts in this case are shortly as follows : The appellant S. K. Roy Chowdhury, purchased premises No. 149. Lowest Chitpore Road Calcutta, which is a large premises containing about 50 rooms. These rooms have been let out to various tenants and the respondent, Afroj Jahan Begum, was the tenant in respect of room No. 37 on the second floor of the said premises at a monthly rent of Rs. 45/- calculated according to the English Calendar month. Actually, the said respondent's father, since deceased, became a tenant many years ago and after the purchase by the appellant, the respondent attorned to him and the appellant accepted her as a tenant, in as much as the respondent's father was dead. The appellant determined the tenancy of the respondent by a notice of adjustment dated 21st, November, I957 calling upon her to quit and vacate the said premises demised 10 her, on the expiry of the last day of December, 1937. As she did not comply with the notice, a suit was instituted in the Court below, in or about February 1958 for a decree for possession. The grounds for ejectment were several and were as follows : The first ground was that: the premises was let out to her for residential purpose only but had been used for manufacturing and business purposes of more than four months without the consent of the landlord. The second ground was that the respondent was guilty of conduct which is a nuisance and cause of annoyance to the neighbours including the landlord, inasmuch as the respondent had been manufacturing zarda at the premises with tobacco leaves and the process of manufacturing surcharges the atmosphere of the locality with pungent smell causing nasal irritation breathing troubles and also caused malarial, deterioration of the condition of the premises by the constant hammering of tobacco on the roof of the premises. The third ground was, that the defendant had been guilty of acts contrary to the provisions of clause "0" of section 103 of the Transfer of property Act. The respondent contested the suit and at the hearing five issues were raised which are follows : "(1) Is the notice legal valid and sufficient ? The third ground was, that the defendant had been guilty of acts contrary to the provisions of clause "0" of section 103 of the Transfer of property Act. The respondent contested the suit and at the hearing five issues were raised which are follows : "(1) Is the notice legal valid and sufficient ? (2) Are the premises which were let out for residence, being used for any other purpose for more than 4 months without the consent in writing of the landlord ? (3) Does the conduct of the defendant amount to nuisance and causes annoyance to the neighbours and the landlord ? (4) Is the tenant guilty of any act of waste and negligence, resulting in material deterioration of the condition of the premises ? (5) Is the plaintiff entitled to a decree for khas possession, costs and other reliefs ?" 2. SO far as Issue No, 1 is concerned, it was held that the notice was legal, valid and sufficient. "With regard to Issue No. 2, it was held that inasmuch as the premises were held by the respondent and her predecessor-in-title for the avowed purpose of manufacturing zarda which purpose was known to the landlord, it must be held that the tenancy was for the purpose of manufacture and, therefore, it had not been used for purpose other than for which it was let out. With regard to Issue No. 3, it was held upon the evidence adduced by both the parties that the conduct of the respondent did not amount to nuisance, nor did it cause annoyance to the neighbours and the landlord. With regard to Issue No. 4, it was held that the allegations of waste, negligence and material deterioration of the condition of the premises had not been proved. Accordingly this issue was also held in favour of the tenant and against the landlord. The result was that the suit was dismissed, because in view of the findings on issuer Nos. 2 to 4 it was held that the respondent, was protected under the provisions of the West Bengal Premises Tenancy Act, 1956. It is against this judgment and decree that this appeal is directed. Before us, Mr. The result was that the suit was dismissed, because in view of the findings on issuer Nos. 2 to 4 it was held that the respondent, was protected under the provisions of the West Bengal Premises Tenancy Act, 1956. It is against this judgment and decree that this appeal is directed. Before us, Mr. Mitra, appearing on behalf of the appellant landlord, conceded Chat in view of the law, as has been developed recently, he is unable to say that the notice given was valid or in accordance with law. Thai being so, he was prepared to have the appeal and suit dismissed upon this ground alone, provided that the other palms were left open, in case of future litigation between the parties. We thought that this was a very reasonable offer to make, but unfortunately, Mr. Mukherjee, appearing for the respondent said that his instructions were not to abandon the advantage of the findings on the other issues, which were in his favour, Consequently, we are compelled to go into those issues. So far as Issue No. 2 is concerned, "we agree with the findings of the Court below. The appellant had only purchased the premises in 1951, For a long time before that, the respondent's father bad been a tenant there in respect of the said room and had been carrying on business in manufacturing zarda. It is, therefore, too late in the day to say that the premises were taken for the purposes of residence or it was being used for a purpose other than the purpose for which it was let out. So far as Issue No. 4 is concerned, we also agree with the view and the conclusions reached by the Court below, namely, that there was not sufficient evidence of waste negligence or material deterioration, of the condition of the premises, The premises was inspected and cracks wore found in the roof but the appellant did not call expert evidence to show how the cracky have occurred or to connect the cracks with the alleged hammering on- the roof of tobacco leaves. We are, therefore, left with issue No. 3. We are, therefore, left with issue No. 3. The learned Judge in the Court below has considered the evidence placed before it, and has come to the conclusion that the appellant had failed to prove that the conduct of the respondent amounted to nuisance or caused annoyance to the neighbours and the landlord. So far as the landlord is concerned, be is perhaps right, because the landlord does not reside in the said premises, but then his agent has an office there and his durwan resides there and I shall presently show that both of them have made out a case on behalf of the appellant. But so far as the neighbours are concerned, which includes some of the other tenants of the said premises as also of the neighboring premises, we think that there has been sufficient evidence to show that there was nuisance and annoyance. I shall presently show that there was no reason whatsoever to reject that, evidence, and that the evidence Called on behalf of the respondent is practically useless. First of all, I have to refer to section 13(1) (e) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the said Act"). Section 13(1) provides that notwithstanding anything to the contrary in any other law no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds mentioned therein. Clause (e) is one of such grounds and runs as follows : "Where the tenant or any person reading in the premises let to the tenant has been guilty of conduct which is a nuisance or annoyance to neighbours including the landlord," 3. THIS ground is not mentioned in section 108 of the Transfer of Property Act. but is a covenant commonly included in leases and it is in this connection that it has come to be considered in English cases. So far as nuisance is concerned, reference may be made to the well-known case of (1) Crump v. Lambert, (1367) 3 Eq 409. The plaintiff there became the purchaser of a certain leasehold house at Walsall in Staffordshire which was situated in the neighborhood of the town of Walsall, which is a manufacturing town, where there are a number of factories. The plaintiff there became the purchaser of a certain leasehold house at Walsall in Staffordshire which was situated in the neighborhood of the town of Walsall, which is a manufacturing town, where there are a number of factories. The defendants, who were iron bedstead manufacturers, erected 3 factory on a piece of land adjoining the plaintiff's properly. The factory contained two blast furnaces, one of which was in constant use of smelting iron, and there was smoke and effluvia within 58 yards of (he plaintiff's house. There was also a lot of hammering of iron bars for the purpose of manufacture. It was contended that after all Walsall was a factory district, and the plaintiff was not entitled to any relief. With regard to nuisance, Lord Romilly said as follows : "What constitutes a nuisance is thus defined by Lord Justice Knight Bruce, when Vice-Chancellor, in (2) Waiter v. Selfe, 4 De G and Sm, 322 : "Both on principle and authority the important point next for decision may properly, I conceive, be thus put : Ought this inconvenience to be considered in fact, as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according of elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people ? The law on. this subject is the same whether it he enforced by action at law or by bill in equity. The owner of one tenement cannot cause or permit to pass over or flow into, his neighbour's tenement any one or more of these things in. such a way as materially to interfere with the ordinary comfort of the occupier of the neighbouring tenement, or so as to injure his property," 4. IN a case decided in this High Court by P. B. Mukharji, 1, in (3) Sm. Kanchanmala Dassi v. Sm. Lilabati Debi, AIR 1951 Cal. 164 , a. house was used as a brothel but was situated in a quarter where brothel generally existed. It was hold that this caused a nuisance and annoyance to the neighbours, and the fact that it was in a brothel-quarter made do no difference. Kanchanmala Dassi v. Sm. Lilabati Debi, AIR 1951 Cal. 164 , a. house was used as a brothel but was situated in a quarter where brothel generally existed. It was hold that this caused a nuisance and annoyance to the neighbours, and the fact that it was in a brothel-quarter made do no difference. So far as annoyance is Concerned, the leading case appears to be the English case of (4) Tod-Heatly v, Benham, (18S9) 40 CD 80. IN that case, the tenant established a hospital for (he treatment of out-door patients suffering from diseases of (he throat, nose ear skin etc. The lease contained a covenant that the demised promises will not be used or occupied nor will anything be done therein which shall or may be or grow to, the annoyance, nuisance, grievance or damage of the lessor etc. or the inhabitants of the neighbouring or adjoining houses. It was held that the starting of the hospital, which might attract contagious or infectious diseases, was a legitimate cause of annoyance to the neighbours. Cotton, L.J, held that in order to show that there was annoyance to the neighbours, the Court must be satisfied by argument and the evidence that reasonable people, having regard to the ordinary Use of a house for pleasurable enjoyment, would be annoyed or aggrieved by what is being done. It Is not that: any particular person is annoyed or aggrieved, but that there is annoyance or grievance to persons who entertain reasonable views, Lindley, L.J. said as follows : "Now what is the meaning of annoyance ? The meaning is that which annoys, that- which raises objections and unpleasant feelings. Anything which raises an objection in the minds of reasonable men may be an annoyance within the meaning of the covenant." The learned Judge was of the opinion that on the evidence it had been satisfactorily shown that the act complained of, did annoy a great many people in the neighbourhood, 5. LET us apply these principles to the facts of this case. The first person called on behalf of the appellant was Madan Mohan Saha, who was his agent. He said that his Office was in the same building and the respondent had been causing nuisance by preparing zarda in the disputed premises. Nuisance was caused by the smell of tobacco dust. The first person called on behalf of the appellant was Madan Mohan Saha, who was his agent. He said that his Office was in the same building and the respondent had been causing nuisance by preparing zarda in the disputed premises. Nuisance was caused by the smell of tobacco dust. The next person called was a durwan of the appellant who said that tobacco was dried in the sun and then hammered into dust and the particles strike the throat. Everybody complained about it. The third witness was one Lutfar Karim. who runs a Genji Karkhana in one of the rooms. He deposed that when the tobacco dust entered his room, his labourers refused to work. He complained about dust although not about the hammering. The next witness, Bhikku Mia, was an employee of a firm which occupied a portion of the first floor. He says that they were disturbed by too much gas coming from the preparation of zarda. by the respondent, By gas he meant the smell of the khini or raw tobacco. The next witness was Md. Kamrul Huda. He also had a genji business on the first floor room. He says that it was impossible in work in his place due to dust coming out of the zarda factory. He says that dust came out when the tobacco was hammered. The next witness was Habib Lakhani. He occupies the room next to that of the respondent. He was a manufacturer of shoes and he did say that ho stocks leather for the purpose of shoe manufacture. He says that he was disturbed by the dust that comes when the hammering look place. The odour also disturbed him. The next witness was Ramaguya Upadhyay. He had a business is room No. 30 on the first floor. He say that he was disturbed by the tobacco dust and smell which came out by boiling. He was also disturbed by the sound of the hammering. He says that as a matter of fact he became ill as a result of this nuisance. He also says that he had complained to the appellant about the dust and signed cm application jointly with a number of persons. The next witness called on behalf of the appellant was Md. Ellias who occupied room No, 40 on the ground floor. He, however, powdered tobacco for paste himself and also boiled tobacco. He also says that he had complained to the appellant about the dust and signed cm application jointly with a number of persons. The next witness called on behalf of the appellant was Md. Ellias who occupied room No, 40 on the ground floor. He, however, powdered tobacco for paste himself and also boiled tobacco. Although he was called by the appellant, he did not support him. His evidence was that nobody had ever made any complaint. So far as the respondent was concerned, a number of persons were called, but their evidence do not amount to much. The first person who was called was an employee and was not strictly a disinterested person. The second, person, P. J. Lakhani, said that his residence wan about five cubits from 149, Lower Chitpore Rd. He said that he was not inconvenienced in the I least by the preparation of zarda. But in cross-examination he confessed I hat he does no remain at home between 10 A.M. to 5 P.M. The evidence as to when the hammering fakes place is somewhat conflicting. In. one place of the evidence it is said that it commences at 11 A.M. and in another place, at 3 F.M. The next witness for the respondent was a servant of Md. Ellias. So, his evidence is not of much use. The other two witnesses were persons against whom the appellant had filed suits fur eviction. Obviously they were not disinterested persons. Before I summarise the evidence. I must refer to one fact. Upon a complaint made to the Health Officer, Calcutta, a copy whereof is set out at pages 1G-17 of Part II of the paper-book, summons was issued on the respondent under section 437 (1) (a) read with section 537, of the Calcutta Municipal Act, 1951 for having used the premises as a manufacturing or place of business - "from which offensive or unwholesome smell fumes or dust arise", without obtaining a license under section 437(1) (a) of the Calcutta Municipal Act. At the hearing which look place on the 17lh June, 1958 the respondent did not appear, only her lawyer appeared; and after evidence was taken and arguments advanced, the case was decided against the respondent and she was convicted. At the hearing which look place on the 17lh June, 1958 the respondent did not appear, only her lawyer appeared; and after evidence was taken and arguments advanced, the case was decided against the respondent and she was convicted. It will be observed that the conviction, was not merely for not taking out a licence but a licence in respect of a manufacture which caused offensive or unwholesome fumes or dust to arise. Upon the evidence stated above, I fail to see how one can come to the conclusion that if has not been established that the neighbours had legitimately complained of nuisance and annoyance Mr. Mukherjee has argued that this was a house in which there were various persons carrying on business and one of them in feather. Therefore, it did not lie in their mouth to say that the dust or smell of tobacco causes nuisance or annoyance. I have set out above the English case where a house was built in a factory district and yet it was held that these might be legitimate grievance of nuisance. I have also mentioned an Indian case in which a bouse used as a brothel, situated in a place abounding in. brothels was hold legitimately to give rise to a charge of nuisance and annoyance. It may be that a cause of action for nuisance might be affected by the bar of limitation, That is another thing. The facts might give rise to an easement. That again entails different legal consequences. But apart from these legal bars, ordinarily, as is the case here, nuisance or annoyance would be that which affects the right of the neighbours to live pleasantly. It would be the reaction of ordinary people, and not fanciful ones. Zarda Is made out of tobacco leaves and it is common knowledge that such leaves, and specially khaini, has got pungent smell, Mr. Mukherjee points out the discrepancy in the evidence about the exact time of hammering. But his own witness has .said that when it is hammered, there is dust (deposition of D.W. 4). Witness after witness has come and deposed to the effect that there was dust which went into the throat, caused labourers to stop work and even gave rise to illness. But his own witness has .said that when it is hammered, there is dust (deposition of D.W. 4). Witness after witness has come and deposed to the effect that there was dust which went into the throat, caused labourers to stop work and even gave rise to illness. There is no reason to disbelieve this evidence, To this must be added the fact that the respondent had been actually convicted of an offence under the Calcutta Municipal Act for carrying out a manufacture which entails noxious fumes and dust. That being so, the finding of the Court below on this issue is not correct and should be set aside, This issue should be found in favour of the appellant. 6. HOWEVER, Mr. Mitra has conceded that the notice served is defective which, in fact, it appears to be. The suit itself must fail upon that ground. The ultimate result of the suit in the Court below must stand and the appeal is dismissed without any order as to costs.