JAYANTI PRASAD Vs. TRILOK CHAND JAIN AND

JUDGEMENT

(1.) THIS is a defendant-tenants' appeal from a decree of eviction from an accommodation on the ground that they had created a nuisance and their tenancy having been terminated by the landlord-respondent they were liable to be evicted. A learned Single Judge hearing the second appeal found some difficulty in agreeing with the view taken by S. N. Singh, J. in the case of Ganga Prasad v. Chaube Jagdish Prasad 1967 A.L.J. 708 and referred the appeal to a larger Bench and that is how this second appeal has come before us.

(2.) TO understand the controversy which arises in this appeal, the facts can be stated in a narrow compass. The relationship of landlord and tenant is admitted. The defendant-appellants were tenants in a portion of a larger accommodation belonging to the landlord-respondent. A dispute arose between the parties with regard to the claim of the tenants that they were tenants also of the other portion of the building being an integral part of the demised premises. This led to the filing of a suit by the landlord for a decree of eviction treating the tenants as trespasser in the other portion of the building. The defence raised was that no decree of eviction could be passed as relationship of landlord and tenant subsisted in respect of the disputed portion of he building, the subject matter of the suit. The defendants of that suit lost the case up to the stage of second appeal in the High Court and the suit for possession was decreed against them. The landlord in execution of decree obtained possession and the tenants remained confined to the possession of the accommodation which according to the findings in the earlier suit was let out. The landlords then commenced the instant suit for eviction of the tenants from that portion of the building which admittedly was demised to the defendants as tenants. A plea was raised by the defendant-tenants that the suit was barred by Section 3 of U.P. Act No. Ill of 1947 as requisite permission for their eviction was not granted by the District Magistrate. This plea of the defendant-tenants was countered by the plaintiff-landlords on the allegation that the defendants having asserted wrongfully and having forcibly taken possession of a portion of the building not let, out to them created a nuisance within the meaning of caluse (d) of rub-section (1) of Section 3 of the U.P. Act No. Ill of 1947, no permission was necessary for filing a suit for their eviction from the District Magistrate. The court below relying upon the decision of S.N. Sigh, J. in Ganga Prasad v. Chaube Jagdish Prasad (supra) held that the defendant-tenants had created a nuisance and the suit for eviction against them was legally maintainable without first obtaining the permission under Section 3(1) (d) of the U.P. Act No. Ill of 1947. The only question that arises in the second appeal for consideration is whether the action of the defendant-tenants of taking possession of another part of the building belonging to the landlords in an assertion of a right of tenancy amounts to creating a nuisance within the meaning of Section 3(1) (d) of the said Act.

(3.) WE need not for the purpose of disposing of this appeal consider the wider question involved in the second argument raised on behalf of the defendant-appellants. More so now when U.P. Act No. Ill of 1947 has been repealed and the new Act, being U.P. Act No. XIII of 1972, has been enforced, which does not contain any provision in respect of the creation of nuisance, being a ground for eviction of a tenant without the permission of the District Magistrate, the question will not arise in future. We, therefore, prefer to confine ourselves to the first argument based on the contention that on the facts established in the instant case the ratio of decision in the case of Ganga Prasad v. Chaube Jagdish Prasad (supra) will not apply. We find much force and tenability in the contention raised on behalf of the defendant-tenants that they having asserted bona fide a claim tenancy to other portion of the building, which claim was adjudicated upon and litigation in regard to which was fought up to the High Court would not by itself be an act of nuisance on the part of the defendants We think when a party in assertion of a bona fide title to the property or a bona fide claim to some interest therein goes before a court of law or is compelled to go before a court of law, it will not involve any element of nuisance entering into his conduct. The word 'nuisance' is a word of wide import. It will include all which in any way prejudices the right of an owner of a property or a thing to enjoy the benefit thereof. A nuisance also will'be one which prejudicially affects the physical health or hurts the legitimate emotion of a person. Of course, the word 'nuisance' used in sub-section (1) (d) of Section 3 of U.P. Act No. Ill of 1947 has not been used in the sense of physical injury or emotional injury but it has been used in the first sense, i.e., preventing the owner from using for his own benefit and enjoyment the property or thing owned by him. It is only when some mala fide or wanton act is done by a party which is high handed and the manner of doing it would be of a nature which causes pain to the owner of a property it may amount to creating a nuisance but to bring in a bona fide assertion and claim and doing of something by a party in assertion of that claim which he considers rightful, though it may hurt the feelings of the true owner of that property and may entail some amount of pain to him, would not be a nuisance in our way of thinking. If that were the meaning given to the word 'nuisance', occurring in Section 3(1) (d) of U.P. Act No. Ill of 1947 then no tenant would be safe where the asserts some bona fide right in regard to any accommodation and the parties have to litigate about it. The facts in the case of Ganga Prasad v. Chaube Jagdish Prasad (supra) established on the part of the defendant-tenant high-handed and wanton action and a complete absence of any bona fide assertion as to a rightful claim. It was in those circumstances that the learned Judge found for the plaintiff-landlord. Here in the instant case as pofited out above, the facts do not warrant such a conclusion. It is well established in this Court that a finding whether a set of circumstances and the facts established on the record amount to a nuisance within the meaning of law is not a finding of fact but a mixed finding of fact and law and can be interfered with in second appeal. The result, therefore, is that this appeal partly succeeds. The decree of eviction against the defendant-appellants passed by the court below is set aside, while with regard to other reliefs it is affirmed.