JUDGMENT - R.M. LODHA, J.:---By this writ petition filed under Article 227 of the Constitution of India, the petitioner who was original defendant takes exception to the judgment and decree passed by the 3rd Addl. District Judge, Sangli on 22nd September, 1989 confirming the judgment and decree passed by the IInd Joint Civil Judge, Jr. Division, Sangli on 29th September, 1983. 2. Dattatraya Appa Rawal, the respondent herein is owner of the property viz. Block No. 98, Room No. 12, situate at Shukrawar Peth, Madhavnagar, Miraj, Sangli. For the sake of convenience, the respondent owner shall be referred to hereinafter as "Landlord" and the said property as "said premises". The petitioner Rajesaheb Shahamit Saheb Nada Pinjari was inducted as tenant in the said premises by the landlord at a monthly rent of Rs. 9/- per month by the erstwhile owner somewhere in the year 1954. For the sake of convenience, I shall refer the petitioner hereinafter as "tenant". The said premises were purchased by the landlord on 9-11-79. The landlord filed a suit for eviction registered as R.C.S. No. 287 of 1981 seeking possession of the said premises from the tenant on the ground that he required the said premises for his own use and occupation. The landlord also sought the eviction on the ground that the tenant has changed the user of the premises from residence into tethering goats and lambs and that the tenant was causing nuisance and annoyance to him and the adjoining neighbours by not keeping the premises clean and in proper condition. The suit was contested by the tenant. The tenant set up the defence that he was using the premises for the purpose of residence and tethering goats etc. since 1954 and the erstwhile owner never raised any objection whatsoever. He, therefore, denied the ground of change of user and nuisance as set out by the landlord. The tenant also set up the plea that premises in question are not required by the landlord for his use and occupation. The trial Court framed various issues and after recording the evidence negatived the landlord's claim for eviction on the ground of reasonable and bona fide necessity. However, the trial Court held that the landlord has been able to establish the grounds of nuisance and change of user and accordingly, decreed the plaintiff's suit. The trial Court framed various issues and after recording the evidence negatived the landlord's claim for eviction on the ground of reasonable and bona fide necessity. However, the trial Court held that the landlord has been able to establish the grounds of nuisance and change of user and accordingly, decreed the plaintiff's suit. The tenant filed appeal challenging the judgment and decree of the trial Court. However, the appeal was dismissed giving rise to the present writ petition. 3. The learned Counsel for petitioner challenged the judgment and decree passed by courts below on the grounds viz. (1) that the courts below failed to consider the provisions of section 6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as there was no change of user from residence to business merely because the premises were used for tethering goats; (2) that the tenant by cogent evidence has proved that he has been using the premises for the same purpose for which it was let out to him and therefore, no case for change of user was made out; and (3) that the tenant has been tethering goats etc. in the open space for the last so many years but was never objected to by the erstwhile landlord and rather he waived the ground of nuisance and therefore, the present landlord has no right to seek eviction on that ground. In this connection, the learned Counsel for petitioner relied upon the judgment of this Court in (Kumari Parvati Kevalram Moorjani v. Madanlal Anraj Porwal)1, reported in A.I.R. 1988 Bombay 354. 4. In the plaint, as regards ground of change of user, the landlord has set up the case that the said premises were let out to the tenant for residential purposes but the tenant is not using the said premises for residence but using the same for tethering goats, lambs etc. and thus, the tenant has changed the user and was liable to be evicted on that ground. The tenant has filed written statement and denied these facts. The tenant has stated that he is residing in the said premises and that he has not changed the user. The landlord has examined himself as P.W. 1 but admittedly, did not examine the erstwhile owner. The landlord in his cross-examination has unequivocally stated that the tenant resides in the said premises alongwith his wife and the children. The tenant has stated that he is residing in the said premises and that he has not changed the user. The landlord has examined himself as P.W. 1 but admittedly, did not examine the erstwhile owner. The landlord in his cross-examination has unequivocally stated that the tenant resides in the said premises alongwith his wife and the children. On the face of this admission by the landlord, in his cross-examination, the courts below seriously erred in reaching the conclusion that the tenant has changed the user of the premises. Moreover, it would be seen that the landlord has not been able to prove that the tenant was tethering goats and lambs in the said premises. Rather in the cross-examination, he admitted that the tenant was tethering his goats and lambs in the open space. Admittedly, the open space is not part of the rented premises. The finding, therefore, recorded by the courts below on the ground of change of user cannot be sustained and has to be set aside. 5. Adverting to the contention raised by the learned Counsel for petitioner challenging the finding of nuisance, it may be straight way observed that the case of the landlord is that the tenant tethers his goats and lambs in the open space and by that nuisance and annoyance is caused to him and the neighbours. It is admitted that the landlord resides just adjacent to the said premises. The said premises were purchased by the landlord in the year 1979. The landlord has been able to be prove that the tenant tethers his goats, lambs etc. in the open space in front of the tenanted premises. By tethering his goats, lambs etc. in the open space in front of the tenanted premises, apparently, nuisance and annoyance is caused to the landlord who resides in the adjoining premises and also to the neighbours. The learned Counsel for the petitioner mainly urged that according to the evidence of the landlord himself, the tenant has been tethering goats, lambs etc. in the open space since 1954 and no steps were taken by the erstwhile owner and therefore, the ground of nuisance has been waived by the erstwhile owner and the present landlord cannot avail of that ground. in the open space since 1954 and no steps were taken by the erstwhile owner and therefore, the ground of nuisance has been waived by the erstwhile owner and the present landlord cannot avail of that ground. In this connection, she relied upon the decision of this Court in Kumari Parvati Kewalram Moorjani (supra) where in para 12 of the judgment this Court held thus--- "12 The depositions of Madanlal and Munga Seth show that they accepted the defence of the tenant. Munga Seth admitted that the barbed wire fencing was erected sometime in 1961 and the western side gate was also exclusively being used by the tenant from about the same time. The deposition of Munga Seth shows that beyond a letter in 1961 no action whatsoever was taken by the previous landlords. Thus from 1961 till 1974 when the suit was filed no action was taken by the landlord against the tenants. Madanlal also admitted that the open portion of the western side gate could be used only by the tenant and by no other occupiers of the bungalow. It was also admitted that the other occupiers in the bungalow use only the gate on the other side of the bungalow. Thus it is clear that there is no nuisance or annoyance whatsoever. A faint attempt was made by the landlords to contend that because of the fencing there was inconvenience for parking cars but considering the admitted fact that there is ample space on the other side of the bungalow for parking cars and the fact that the other occupiers cannot use the western side open space it is very difficult to accept the case of the landlords that the acts alleged on the part of the tenant amount to nuisance or annoyance within the meaning of section 13(1)(c). It is pertinent to note that not a single occupier of the bungalow has been examined to prove the nuisance or annoyance. On the other hand the evidence of the plaintiff landlords' own witness namely Munga Seth shows that the open space adjoining the leasehold premises and the gate from the western side was exclusively used by the tenant and not by any other neighbouring occupiers. Moreover the landlords did not object to the erection of barbed wire fencing or the locking of gate for nearly 13 years. Moreover the landlords did not object to the erection of barbed wire fencing or the locking of gate for nearly 13 years. Under the circumstances, it is very difficult to see as to how the present landlords who had purchased the property in 1973 can maintain a suit on the alleged ground of nuisance and annoyance. This is a clear case of waiver. The contention of the learned Advocate for the landlords that the plea of the waiver cannot be raised in a suit under section 12 or 13 of the Bombay Rent Act also cannot be accepted in view of the Division Bench judgment reported in (Radhabai Shelar v. Trimbak Shirole)2, in 1981 Mah.L.J. 967. The Division Bench held that it is open for the tenant to plead that the previous landlords have waived the ground under section 13(1) Cls. (a), (b) and (c) and therefore, the successor in title of interest of the original landlords cannot claim possession of those grounds. The fact in the present case show that the previous landlords clearly waived the so-called breaches on the part of the tenant and therefore it is not open for the present landlords to maintain an action on the ground of nuisance and annoyance under section 13(1)(c). In any case, the landlords cannot succeed on this ground inasmuch as there is no evidence to prove the nuisance or annoyance as required by section 13(1)(c)." 6. The facts in Kumari Parvati Kevalram Moorjani's case were entirely different and therefore that case has no application in the present case. In that case, the landlord did not take any action for the period from 1961 to 1974 and on that basis, this Court held that the ground of nuisance was waived. In the present case, though no action was taken by the erstwhile owner against the tenant on the ground of nuisance but the present landlord who purchased the said premises in the year 1979, has filed the suit for eviction in the year 1981 seeking eviction of the tenant from the said premises inter alia on the ground of nuisance. In the present case, though no action was taken by the erstwhile owner against the tenant on the ground of nuisance but the present landlord who purchased the said premises in the year 1979, has filed the suit for eviction in the year 1981 seeking eviction of the tenant from the said premises inter alia on the ground of nuisance. The actionable nuisance or annoyance is a recurring cause of action and after the purchase of the property by the landlord when he found that the act of the tenant in tethering the goats and lambs in the open space in front of the tenanted premises was causing nuisance and annoyance to him and the neighbours, he filed the suit for eviction. The said ground being available to the landlord could not be negatived on the ground that the erstwhile owner did not take any action against the tenant on the said ground. The two courts below did not commit any error in granting decree for eviction on the ground of nuisance. 7. Consequently, writ petition is partly allowed. The decree for eviction on the ground of change of user is set aside but it is maintained on the ground of nuisance and annoyance. In the facts and circumstances of the case, parties are directed to bear their own cost. 8. Rule stands disposed of in terms aforestated. Writ petition partly allowed.