A. K. NAYAK, J. ( 1 ) THIS is an appeal by the tenant-defendant against an order of eviction on the ground of nuisance passed by the Additional District Judge, 5th Court, Alipore, in Title Appeal No. 1074 of 1985 affirming the judgment and decree of Munsif, 2nd Court, Alipore, in Title Suit No. 484 of 1977. ( 2 ) THE plaintiff-landlord instituted this suit against the tenant-defendant in respect of a garage room in premise No. 42/5, Padma Pukur Road, Ballygunge, composing a monthly tenancy at a rental of Rs. 58. 50 according to English Calendar, in which the defendant has been carrying on a sweetmeat shop since 1954. According to the plaintiff, the defendant was a habitual defaulter and failed and neglected to pay rent for the suit premises since September, 1975 and further that the defendant illegally and wrongfully and in contravention of the terms of tenancy installed a big oven in the suit room and kept the same burning for 24 hours, creating pollution by smoke, fume and heat and thereby posing health hazard to the plaintiff-landlord as well as the neighbours, besides seriously damaging the house of the plaintiff which has developed big cracks in the waits of the disputed premises and the mezzanine room above in occupation of the plaintiff-landlord. It is also the plaintiff's case that he required the suit premises for his own use and occupation, as he wanted to start a grocery shop for his unemployed son. The plaintiff also alleged that the defendant-appellant filed false cases again him causing annoyance and financial loss to the plaintiff. ( 3 ) THE defendant-appellant contested the suit denying all such allegations of the plaintiff-respondent i e, default, nuisance and reasonable requirement. It was asserted by the appellant that he has been carrying on such business of manufacturing and selling sweets since the inception of his tenancy in 1953 and that the grounds as alleged by the plaintiff-respondent are just false pretensions to get rid of him and evict illegally from the suit premises. ( 4 ) THE appellant having deposited all the arrears rents in terms of the courts order pursuant to a petition filed by him under section 17 (2a) of the Premises -Tenancy Act, (hereinafter to be referred to as the Act) the issue regarding default was negatived and found in favour of the appellant. ( 4 ) THE appellant having deposited all the arrears rents in terms of the courts order pursuant to a petition filed by him under section 17 (2a) of the Premises -Tenancy Act, (hereinafter to be referred to as the Act) the issue regarding default was negatived and found in favour of the appellant. The suit, however, was decreed by the trial court on the ground of reasonable requirement and nuisance. The appellate court reversed the finding of the trial court on the point of reasonable requirement but upheld and decreed the suit on the ground of nuisance under section 13 (e) of the Act. ( 5 ) BEING aggrieved by such order of the appellate court, the defendant-appellant has preferred the second appeal asserting that both the courts below went wrong in finding that the act and conduct of the appellant constituted nuisance-warranting evic4iori of the appellant under section 13 (1) (e) of the Act on behalf of the plaintiff-respondent, it has been urged by way of cross objection that the finding of the lower appellate court refusing the prayer for eviction on the ground of reasonable requirement is not sustainable as unsound and improper. So, before this court the grounds for eviction that have been agitated and challenged by the parties are nuisance and reasonable requirement for own use and occupation of the respondent. ( 6 ) UNDOUBTEDLY, the plaintiff-respondent is entitled to a decree for eviction on any one of these two grounds. Be it stated at the very outset that there is a concurrent finding of eviction by both the courts below, on the ground of nuisance. In other words, there is unanimity of opinion of both the courts below that acts and conduct of the defendant-appellant constituted nuisance in law and fact as contemplated under section 13 (e) of the Act. So, this Court will be reluctant to interfere with such finding of the lower appellate court unless the court below leg committed a grave error of law or it involves substantial question of law warranting interference. So, this Court will be reluctant to interfere with such finding of the lower appellate court unless the court below leg committed a grave error of law or it involves substantial question of law warranting interference. ( 7 ) IT is the definite case of the plaintiff that the defendant-appellant illegally and wrongfully and in contravention of the terms of tenancy installed a big oven in the disputed shop room which is in fact a garage, and keeps the said oven burning for day and night for the purpose of manufacturing sweets in the sweetmeat stall. The outcome of huge fume and smokes due to burning of such big oven according to the plaintiff is threefold: Firstly, it has polluted entire environment causing nuisance and annoyance to the residents nearby including the inmates of the entire two-storied building of the plaintiff, affecting their right to live pleasantly and subjecting them thereby to suffer from various admen. Secondly, the burning of the huge quantity of coal throughout the day has resulted in the structural damage to the building developing cracks along the mezzanine floor above due to excessive heat generated by such oven. Thirdly, the heat and smoke created by such oven has affected the professional life of respondent who has been prevented thereby from carrying on his normal avocation of life as a music teacher and holding his music class in the mezzanine floor above the suit premises. ( 8 ) THE appellant no doubt has taken the plea that he is carrying on such business since the inception of tenancy in 1954 by manufacturing sweets in the same stall. ( 8 ) THE appellant no doubt has taken the plea that he is carrying on such business since the inception of tenancy in 1954 by manufacturing sweets in the same stall. The question whether such manufacturing is being done by the appellant since the inception of his tenancy or it has been started by him without, permission since 1966, as contended by the respondent has been carefully considered by both the courts below with reference to the evidence adduced by both the parties and there is the concurrent finding that there exists in big oven in the suit premises which admittedly burns about a maund of coal everyday for 12 hours ranging from 6 a. m. to 11 a. m. and from 4 p. m. to 11 p. m. The defendant-appellant has also admitted in his evidence that such burning of coal generates excessive heat and that the disputed shop room as well as the floor above gets very much heated in consequence thereof. It is also an admitted fact that the respondent has stopped conducting his music school in the mezzanine floor which he was holding there before. ( 9 ) WE find from the evidence adduced by the parties that the height of this room is about six feet and a half. We further find that the diameter of the admitted big oven in the suit premises is 2"-6" leaving a space of only 4" from the oven to the ceiling of the mezzanine floor. Both the courts also relied upon the report of the Engineer Commissioner Ex. 16 that besides creating smoke and heat and the consequent pollution thereby, the burning of the huge oven rendered the mezzanine floor unfit for human habitation. The report further shows that it has caused damage to the building itself by developing cracks on the southern side of such floor. There is no evidence on record to show that there is any chimney or any other device to minimise the nuisance complained. The report of the expert contains in detail, the various aspects of the pollution hazard quite apart from the damaging effect to the building due to the burning of such big oven inside the suit premises. Admittedly also i. e. appellant was prosecuted and convicted for creating such nuisance and heal hazard by the municipal authorities under Municipal Law. The report of the expert contains in detail, the various aspects of the pollution hazard quite apart from the damaging effect to the building due to the burning of such big oven inside the suit premises. Admittedly also i. e. appellant was prosecuted and convicted for creating such nuisance and heal hazard by the municipal authorities under Municipal Law. Such finding of both the courts on the point of nuisance has been assailed on behalf of the appellant on mare than one ground. It has been urged firstly that as the appellant is carrying on such business by manufacturing sweets since the inception of tenancy in 1954, with the knowledge and consent of the respondent, he has accepted the same and as such is estopped from challenging or raising any objection to the same. The courts below have relied upon Exbt. 8, a receipt showing that a garage room was given in tenancy right to the appellant not showing anything about the, purpose for which the same was let out by the respondent, whereas if is the specific case of the respondent that the same was installed in 1966 without his permission and prior to that it was being manufactured by the appellant by hiring a cottage at 39, Padma Pukur Road. There was no specific denial to this part of the evidence of the plaintiff-respondent (P. W. 1) and the appellate court accepted the evidence of the plaint' in this regard. ( 10 ) AS already stated the question whether the admitted big oven was installed in 1966 or before that, is not of much consequence in view of the finding of both the courts that it constitutes a veritable nuisance as well as annoyance posing health hazard to the respondent-landlord as well as to the neighbours besides causing structural damage to the building in question. ( 11 ) NEXTLY, it has been urged on behalf of the appellant that the burning of such oven for the purpose of manufacturing sweets is incidental to carry on such trade or business and cannot be said to be a nuisance at all. Besides the appellant has been granted the right to carry on the same and it cannot be carried on without causing this inconvenience. Besides the appellant has been granted the right to carry on the same and it cannot be carried on without causing this inconvenience. It has been argued to constitute a ground for eviction as contemplated under section 13 (e) of the Act, there must be nuisance or annoyance to the neighbours including the plaintiff-respondent. In other words, it has been contended that there must be a complaint of nuisance and annoyance of others in the vicinity and not merely of the plaintiff-respondent. To emphasise their view point in this regard, the learned Advocate for the appellant submitted that in an earlier suit brought by the plaintiff-respondent against the appellant for eviction, there was also a similar issue of nuisance and annoyance which was ultimately not pressed by the respondent as shown by Exbt. J, the judgment in the previous suit and the same operates as a bar of res judicata in this suit. ( 12 ) TO have a proper appreciation of the questions raised above let us have a look into the concept of nuisance or annoyance as contemplated in section 13 (e) of the Act, which is a ground for eviction of the tenant. No order or decree for recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on any of the grounds mentioned in section 13 (1) of the Act. Section 13 (1) (e) of the Act speaks of such ground of nuisance or annoyance in the following manner. "where the tenant or any person residing in the premises let to the tenant has been guilty of conduct which is a nuisance or annoyance to neighbours including the landlord. " ( 13 ) NUISANCE is a mixed concept, partly subjective and partly objective. In the instant case, the act and conduct complained of is the burning of the oven in the suit premises. Megarry in his Rent Acts, Volume I, II Ed. has explained the meaning of nuisance as not to be used in a technical sense but as nuisance in fact. According to the author, it is to be construed in the normal way is according to plain, sober and sample notions and not as covering anything merely "fanciful" or a matter of "mere delicacy or fastidiousness". has explained the meaning of nuisance as not to be used in a technical sense but as nuisance in fact. According to the author, it is to be construed in the normal way is according to plain, sober and sample notions and not as covering anything merely "fanciful" or a matter of "mere delicacy or fastidiousness". Annoyance, on the other hand, has been taken to have wider meaning covering everything, which reasonably troubles the mind or pleasure of an ordinary sensible person. Hill and Redman in their Law of Landlord and Tenant have explained the meaning of nuisance in the same way as already stated. The word nuisance according to them is not to be used in the technical sense of the tortious or statutory nuisance. They have referred to the meaning as given in the leading case of Walter vs. Selfe, A. L. J. CH 433, wherein nuisance was considered as "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant modes and habits of living, but according to plain and sober and simple notions among the English people. " ( 14 ) THE English Act provides that nuisance and annoyance must be to the adjoining occupiers. According to Woodfall (landlord and tenant-annoyance and nuisance) para 3-0168 nuisance to adjoining occupiers means an interference with the ordinary comfort. Annoyance is a wider expression, which covers everything likely to go to trouble in any way ordinary sensible persons even though not involving physical interference with their comfort. Whether an act complained of is nuisance or annoyance is a question of fact to be decided by the trial Judge. ( 15 ) THE West Bengal Premises Rent Control Act of 1950 contained a similar provision as that of the English Act. It was nuisance or annoyance to occupiers of adjoining or neighbouring premises. But under the present Act of 1956, it is nuisance or annoyance to neighbours which is much wider than before including the landlord. If the landlord is in fact an adjoining occupier or neighbour, there is no good reason why he may not claim on the footing of nuisance or annoyance to him, even if he is the only person who has suffered. If the landlord is in fact an adjoining occupier or neighbour, there is no good reason why he may not claim on the footing of nuisance or annoyance to him, even if he is the only person who has suffered. Such an extended meaning of the adjoining occupier has been also given by various English decisions as enumerated by Megarry in his Rent Acts, Volume-I. But if the landlord is not an adjoining occupier or neighbour, i e if he has not been in actual occupation of the adjoining premises as neighbour, he is not entitled to maintain an action. So even if the landlord is the only person aggrieved by the act and conduct of the defendant, he can maintain an action against the defendant under section 13 (e) of the Act. ( 16 ) MR. S. Dasgupta, appearing on behalf of the respondent has argued that in fact, neighbour as contemplated in section 13 (e) of the Act has, nowhere been defined in the Act. In the matter of interpretation of statutes and construction of undefined word in a statute he has referred to a decision of Supreme Court reported in AIR 1972 S. C page 168. According to such decision, where the definition of a particular word in a statute has not been given, Supreme Court has pointed that it must be construed in its popular sense if it is a word of everyday use. Popular sense means, "that sense which people conversant with the subject matter with which the statute is dealing would attribute to it. " Learned Advocate for the appellant has referred to Maxwell in this context. Even by resorting to such interpretation as given by Maxwell of such a word would not matter much, as only natural and ordinary meaning of such words are to be taken into account without qualifying or modifying the same to any extent. We have already seen such an extended meaning of the word of "adjoining occupier" has been given by various English decisions as enumerated by Megarry. The decision in Tod Heatey's case vs. Benham (1889) 40 C. D. 86, has been followed in the Bench decision of this Court in S K. Roychowdhury vs. Afroj Jahan Begam, reported in 71 C. W. N. page 587. The decision in Tod Heatey's case vs. Benham (1889) 40 C. D. 86, has been followed in the Bench decision of this Court in S K. Roychowdhury vs. Afroj Jahan Begam, reported in 71 C. W. N. page 587. It was held that in order to show that there was annoyance to the neighbours, the court must be satisfied 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 hold reasonable views. ( 17 ) ORDINARILY, nuisance or annoyance would be that which affects the right of the neighbours to live pleasantly. But as pointed out by M. P. Thakkar, J. in his decision reported in AIR 1978, Gujrat, page 72, it must be of very serious character, in nature, intensity and frequency. It must not be something of which one would not take serious notice as occasional or even frequent quarrels in a domestic household, or living with a mistress as it so happened in that case. It was however, a case of annoyance rather than of nuisance. Nuisance or annoyance whatever it might be, it was not affecting so much either the plaintiff-landlord or the neighbours. ( 18 ) THE next question that arises is whether smoke, fume or heat either together or singly which materially interfere with the ordinary physical comfort of human existence would constitute a nuisance in law. In Halsbury's Laws of England 4th Ed, Volume 34, it has been observed that it would be so, when judged by a particular standard or in particular situation as stated therein. These need not be actually noxious or injurious to health, and it is immaterial that there are other sources of discomfort in the neighborhood if, the one complained of is material addition to it. The learned Advocate for the appellant has referred in this connection to the unreported Bench decision of this Court (in First Appeal No.-38 of 1985, Students' Health Home vs. Sri Shib Narayan Mukherjee, hearing an appeal against the decree of Judge, 2nd Bench, City Civil Court, Calcutta ). The learned Advocate for the appellant has referred in this connection to the unreported Bench decision of this Court (in First Appeal No.-38 of 1985, Students' Health Home vs. Sri Shib Narayan Mukherjee, hearing an appeal against the decree of Judge, 2nd Bench, City Civil Court, Calcutta ). In delivering the Judgement in that case, S. P. Das Ghosh J. has observed that breaking of coal or cooking of food and causing disturbance thereby in an ordinary domestic household cannot be said to be nuisance or annoyance within the meaning of section 13 (1) (e) of-the Act. There should not be, not that there cannot be, two opinion in a situation as it transpired in that case. ( 19 ) THERE is a catena of English decisions cited in Halsbury's Laws of England showing that if a nuisance really exists, it cannot be justified on the ground that the place is a suitable or convenient one; or that as it has been alleged in the instant case that the defendant has been granted the right to carry on the trade; if it is not proved that the trade cannot be carried on without causing inconvenience; or that others in vicinity do not complain. The author enumerating such cases has further opined that the question of nuisance or no nuisance is one of degree and no specific rule can be laid down for that. As we have already seen both the courts below considered in detail, the facts and circumstances of the case finding clearly that the act of user of the shop room by the defendant by burning a big oven daily for a considerable part of the day really constituted a nuisance at least to the plaintiff-landlord who was occupying the selfsame premises and who as a music teacher has been prevented from using the mezzanine floor in conducting his class due to the act complained of. It is also, the admitted evidence that the Municipal authority proceeded against the defendant-appellant on their own and the appellant was convicted by the Municipal Court of such offence. Considering the fact that such act and conduct of the defendant is a continuing cause of action, it cannot be said that simply because the predecessor-in-interest of the respondent did not press his claim in an earlier suit, it would constitute a bar of res judicata in the present suit. Considering the fact that such act and conduct of the defendant is a continuing cause of action, it cannot be said that simply because the predecessor-in-interest of the respondent did not press his claim in an earlier suit, it would constitute a bar of res judicata in the present suit. Moreover, we do not know. What sort of relief was actually claimed by the plaintiff-respondent in that suit, nor can there be any question of estoppel as there is nothing convincing on record to show that respondent-landlord by his act or omission allowed the appellant to continue such nuisance subjecting himself to suffer the same. ( 20 ) IN view of what has been discussed above, I am, therefore, in agreement with the findings of the courts below that the defendant-appellant carries on the business of a sweetmeat shop by burning a big oven for more than 12 hours. Secondly, such conduct of the appellant has affected the right of the neighbours including the plaintiff-landlord to live pleasantly by creating pollution of smoke, fume and heat. Not to speak of living pleasantly it has made it too hot for respondent-landlord to occupy or use his mezzanine floor in normal or ordinary way. ( 21 ) NEXTLY; we come to the question of the requirement which the plaintiff-respondent has urged before this court by way of cross objection as because the decree for eviction passed by the trial court on that ground has lien overruled by the appellate court. The case of the plaintiff in this regard is that he has a son aged 30 years, who is unemployed and that he wants to open a grocery shop for his unemployed son for which he essentially requires the disputed premises now in occupation of the appellant. ( 22 ) UNDISPUTEDLY, the defendant has an unemployed son and that defendant has means to start such a business has not been questioned or disputed by any positive evidence adduced by the appellant. The learned appellate Judge has refused to allow such prayer for eviction among other grounds that absence of a reasonably suitable accommodation has not been pleaded in so many words in his pleadings. The learned appellate Judge has refused to allow such prayer for eviction among other grounds that absence of a reasonably suitable accommodation has not been pleaded in so many words in his pleadings. The learned Judge has referred to about three ingredients required to make out a case for such eviction, namely, that the landlord is the owner of the premises in question that the suit premises are reasonably required by the landlord for his own occupation and that the landlord is not in a position of any reasonably suitable accommodation. Of these three ingredients as already stated, the plaintiff-respondent has not stated in so many words about the absence of reasonably suitable accommodation in his pleading. We find from the judgment of the trial court that altogether separate and distinct issue, berg issue no. 5 was framed as to whether the plaintiffs had any other reasonably suitable accommodation. The plaintiff also led evidence on this point which has been referred to by the Trial Judge stating in so many word that his son is aged 30 years and that he has been unemployed since he left school and that he has no other suitable room to open such a shop, although he has the required money and means for starting a grocery shop. Excepting putting a suggestion denying such alleged requirement the defendant-appellant could not extract from the cross-examination of the plaintiff-respondent any material which could cast any doubt regarding the plaintiff's bona fide about such requirement or about the existence of any such alternative Accommodation available to the respondent. Finding of the trial court regarding means of the respondent to start such a business has not been questioned by the appellate court. Rather he has accepted the same to be true. The appellate court seemed to have a doubt regarding the genuineness of the plaintiffs contention in view of a passing statement of the appellant that there was a ghar in the suit premises on which there was no cross-examination. There is no material whatsoever to show that this room to which the defendant hay made casual reference, is suitable as an alternative accommodation for the purpose of starting a grocery shop as intended by the respondent. There is no material whatsoever to show that this room to which the defendant hay made casual reference, is suitable as an alternative accommodation for the purpose of starting a grocery shop as intended by the respondent. The trial court accepted the correctness of the statements of plaintiff-respondent in his evidence and his contention as such to be bona fide, as because, the defendant could not give in detail about such alternative accommodation. Being a tenant-occupier in the selfsame premises, he is supposed to have a better knowledge about the position of the rooms and about any alternative accommodation which may be available to the respondent. The trial court therefore relied very much upon the positive assertion of the plaintiff-respondent in this regard and evidence adduced by him in support thereof and the absence of anything being elicited in his cross-examination which could disprove or cast any doubt regarding the genuineness of his claim as such. The case of the plaintiff-respondent in this regard cannot be summarily rejected simply for the omission to mention in his plaint that he has no reasonably suitable accommodation for the said purpose save and except the disputed premises. As already stated, though he did not describe in so many words in the plaint about absence of a reasonably suitable alternative accommodation, plaintiff made out a case that he reasonably requires the premises to start a shop for his unemployed son and in his evidence categorically stated that he has no other reasonably suitable accommodation anywhere and a specific and definite issue was framed on that point on which both the parties adduced evidence. It cannot be said therefore, that the parties were quite in the dark as to what case was being made out and that the appellant was deprived of the opportunity to adduce evidence to meet any, new point. So the absence in the pleading to state about any reasonably suitable accommodation is just a mere irregularity which resulted in no prejudice to the parties. If any authority is needed, we may refer to the Supreme Court decision reported in page 593 where it was held that evidence led on a particular issue could not be made the foundation for decision of another different issue. If any authority is needed, we may refer to the Supreme Court decision reported in page 593 where it was held that evidence led on a particular issue could not be made the foundation for decision of another different issue. But the rule has no application to a case where the parties go to trial with the knowledge that a particular question is in issue and evidence has been led on that. This has also been followed by the Bench decision of this court reported in AIR 1989 Calcutta, page 244. In delivering the judgment in that case Sankari Prasad Das Ghosh, J. held that although in a case, under section 13 (1) (FF), no case had been made out about any alternative reasonably suitable accommodation in the plaint and no issue was raised in the court below and in the memo of appeal filed in the High Court no ground has been taken by the tenant about any alternative reasonably suitable accommodation of the landlord; it would justify a remand of the suit to the court below for making out such case in the plaint, when it is not even the case of the tenant in appeal that the plaintiff had my alternative reasonably suitable accommodation. Similar such view has been taken by Amitabha Dutta, J. in a case reported in 86 CWN holding that although the exact words of the second part of section 13 (1) (FF) of the Act were not used, the plea had been raised substantially in the plaint, evidence was led to that effect and local inspection of the premises in occupation of the plaintiff was made and in that event, although a specific issue had not been framed, the appellate court had come to such a finding because of the existence of relevant and admissible oral and documentary evidence on record. So it was held even omission to frame an issue on the point was not found prejudicial to the parties resulting in miscarriage of judge in the suit. ( 23 ) SO, in view of what has been stated above the learned appellate Judge was not justified in overruling the contention made on behalf of the plaintiff-respondent on this score as taken by way of cross objection and the trial court was thereby justified in granting a decree in favour of the respondent also on the ground of reasonable requirement. The fading of the appellate court on this ground is therefore, set aside, and it is held that the plaintiff-respondent is also entitled to get a decree on the ground of reasonable requirement ( 24 ) THE result is the appeal fails and the same is dismissed. Cross objection filed by the respondent is upheld. No order is made as to costs. Appeal dismissed. Cross objection allowed.