Appeal No 1890 of 1974
From the Judgment and Order dated 681973 of the Gujarat High Court in Second Appeal No98 of 1973
MV Goswami for the Appellants
SK Dholakia and P Narasimhan for the Respondents
The following Order of the Court was delivered This appeal under Article 136 is against the judgment of the High Court of Gujarat in Second Appeal No98 of 1973 dated August 6 1973
The appellants  predecessor was inducted in Field Nos439 and 676 as an usufructuary mortgagee in the year 1945
On expiry of the period of redemption prescribed therein that is 25 years the suit for redemption was filed in 1970 by the respondents
The trial court decreed the suit subject to payment of damages for improvements
On appeal the District Court confirmed the decree for redemption but set aside the decree for damages
In second appeal the High Court confirmed the decree of the appellate court
Thus this appeal
In the High Court the appellants sought two contentions namely by operation of Section 2 A which was brought by way of amendment of Section 48 to the Bombay Tenancy Act 1939 the mortgagee became a deemed tenant
It was not permitted to argue as is not a pure question of law but is a mixed question of law and fact which need investigation of facts
It was neither raised in the pleadings nor argued either before the trial court or the appellate court
Therefore the question raised in the second appeal for the first time was disallowed
The second question namely the jurisdiction of the civil court to declare the tenancy rights by operation of the Amendment Act 573 which brought Section 85 A on statute with retrospective effect
It ousted the jurisdiction of the civil court to decide the dispute of tenancy rights in pending suit
This contention too was negatived as when the Amendment Act came into force the second appeal was pending and therefore the High Court held that the civil court was not ousted to exercise the jurisdiction and to refer the matter to the Revenue Court for jurisdiction for adjudication whether the appellants 580 were or were not deemed tenants
The same contention was reiterated before us
Placing reliance on a Division Bench judgment of the Gujarat High Court in Salman Raje vs Madhavsang Benesang reported in ILR 1963 Guj722 Shri MV Goswami the learned counsel for the appellants contended that by operation of Section 2 A the appellants are deemed tenants
Once the appellants are deemed tenants the Revenue Court has to decide that issue
The second appeal is a continuation on the suit and therefore the High Court is not right in rejecting the claims of the appellants
It is not necessary to express any opinion on the correctness of the judgment of the Division Bench of the Gujarat High Court
Suffice it to say that the appellants had not specifically pleaded that the appellants are deemed tenants by operation of Section 2 A of the Act
What was pleaded in the written statement was that initially the appellants  predecessor was continuing as cultivating tenant
But by virtue of the mortgage their tenancy right merged in the right as usufructuary mortgagee
On redemption pre existing tenancy rights get revived
But that plea was not pursued
A new plea based on Section 2 A was sought to be raised for the first time in the High Court
The High Court rightly did not permit the appellants to raise the plea of a deemed tenancy as the said claim needs investigation based on factual foundation which was lacking
Once the right of tenancy is not permitted to be raised the question of construction of Section 85 A whether the Civil Court had jurisdiction or not is an academic issue
Accordingly we are not going into that question
The learned counsel for the appellants also contended that the appellants are entitled to the improvements
The High Court did not go into that question as the same was not canvassed and the decree of the appellate court is quite right
We cannot go into that question which is accordingly rejected
The appeal is accordingly dismissed but in the circumstances without costs
TNA Appeal dismissed


Summary:
The appellant defendant was in occupation of a flat as its tenant in a storeyed building comprised of a large number of flats occupied by different tenants
When the owner of that building mortgaged with possession the said building in favour of respondents plaintiffs the appellant defendant and other tenants in different flats of that building became tenants under respondents plaintiffs usufructuary mortgagees and continued as such tenants on payment of monthly rents to them
But by a quit notice dated July 3 1967 the respondents plaintiffs determined the monthly tenancy of the appellant respecting the premises in his occupation and sought to recover from him the possession of the premises by instituting a suit in the court of Small Causes at Bombay on the very ground on which his tenancy was terminated that is that the defendant had been guilty of conduct which was a nuisance or annoyance to the adjoining or neighbouring occupiers under clause c of sub section 1 of Section 13 of the Bombay Rents Hotel and Lodging House Rates Control Act
The trial court on an appraisal of the oral and documentary evidence adduced by the parties recorded its findings on issues in favour 471 472 of the respondents plaintiffs
Consequently it decreed the suit of the respondent plaintiffs for recovery of possession of the premises
The appellate court before which the decree of the trial court was appealed against by the appellant defendant on its re appraisal of the evidence affirmed the findings of the trial court and dismissed the appeal
The findings as to the acts of nuisance and annoyance attributable to the appellant and the persons who were residing in the premises are i that the appellant erected a Textile Printing Mill on the terrace of the storeyed building and ran it during nights so as to make the occupiers of the adjoining and neighbouring tenements suffer the vibrations and noise in the building arising on account of the running of the Mill and loose their quiet and sleep during nights ii that he unauthorisedly utilised the water stored
in the common over head tanks on the terrace meant for domestic use of all the occupiers of the tenements in the building for running his Mill a non domestic purpose iii that the appellant and the persons residing with him in the premises had often removed the radio aerials and TV antenas of the occupiers of the adjoining and neighbouring tenaments which had been fixed above the common terrace of the building  iv that they were wrongly preventing the respondents plaintiffs and their workers in reaching the common terrace for repairs of radio aerials TV antenas telephone lines and the like of the occupiers of the neighbouring tenaments in the building by blocking its staircase
Feeling aggrieved by the decree of the trial court and its affirmation by the appellate court the defendant impugned the same by filing a writ petition under Article 227 of the Constitution before the High Court of Bombay but that writ petition was rejected in limine
In appeal to this Court it was contended on behalf of the appellants a that an usufructuary mortgage of tenanted premises cannot rile a suit for recovery of its possession from the tenant under section 131 c of the Act b the findings of the appellate court recorded respecting acts of nuisance and annoyance not having been based on the evidence on record become unsustainable c the acts found to have been committed by the appellant defendant and the persons residing with him in the premises even if are true they could not have been regarded as acts amounting to nuisance or annoyance under section 131 c of the Act
Dismissing the appeal this Court 473 HELD 1
The expression landlord  in sub section 1 of section 13 of  the Act includes an usufructuary mortgagee where the tenanted premises is the subject of usufructuary mortgage
Section 131 contains nothing repugnant in its subject or context which would disentitle an usufructuary mortgagee as a landlord of the tenanted premises to recover its possession from the tenant on the ground envisaged under clause c
482A 480B SB Abdul Azeez By Lrs vs M Maniyappa Setty and Ors   relied on
V Dhanapal Chettiar vs Yesodal Ammal AIR 1979 SC 1745 referred to
Nanalal Girdharlal and Anr
vs Gulamnabi Jamalbhai Motorwala and Ors 1972 13 Gujrat law Reporter 880 referred to as no longer good law
11 Under the definition of usufructuary mortgage  in clause d of Section 58 of the an usufructuary mortgagee is a transfer of a right to possession of the mortgaged property and the right to receive the rents and profits accruing from such property
When a lessor of a leased property creates an usufructuary mortgage in respect of such property what he transfers under Section 109 of the TP Act as a mortgagor in favour of the usufructuary mortgagee includes his right to possession of such property and the right to receive the rents and profits accruing from it
Thus Section 109 of the TP Act entitles the usufructuary mortgagee from the lessor as against the lessee for all rights which the lessor had against such lessee
From this it follows that tenanted premises if is mortgaged by the landlord by way of usufructuary mortgage the usufructuary mortgagee thereunder would become entitled to receive the rents and profits accruing from such property in his own right and on his own account
479E G 2
It cannot be said that the findings of the lower appellate court are not supported by the evidence on record of the case
In fact some of the findings are to a great extent based on the facts which were admitted by the appellant himself
Besides the findings receive support from the evidence given in the case by the occupiers of the adjoining and neighbouring tenaments of the same building
Therefore as seen from the judgment of the appellate court its findings in relation to the acts of the appellant 474 and persons residing with him in the premises are based on appreciation of ample evidence that was on record and the same cannot be said to have been based on no evidence or even improper appreciation of evidence
Thus there is no justification to interfere with such findings of facts recorded by the appellate court virtually affirming the findings of fact recorded by the trial court
484D G H 485A 3
There are no statutory definitions of nuisance  or annoyance  which under section 131 c of the Act constitute a ground for recovery of possession by landlord of a premises in the occupation of a tenant
However the acts of the appellant or persons residing with him in the tenanted premises which are found as acts causing nuisance or annoyance to adjoining or neighbouring occupiers cannot fall short of being acts of nuisance or annoyance if regard is had to their nature intensity and duration and the consequential ill effects which might have been produced by them on the normal living of such occupiers
They cannot make the Court to think that they were not clear acts of nuisance or annoyance envisaged under section 131 c of the Act
Therefore the courts below have rightly found them as acts of nuisance or annoyance envisaged under section 131 c of the Act
485D G Dhabhi Lalji Kalidas vs Ramniklal Somchand Mehta 1975 16 Gujarat Law Reporter 824 Gaurishanker  Babulal Govindji vs Bhikhalal Chhaganlal  Ors 1977 18 Gujarat Law Reporter 805 held inapplicable
Even otherwise the acts said to have been committed by the defendant and persons residing with him in the premises when are as stated found by the fact finding courts to have amounted to acts of nuisance or annoyance entitling the plaintiff under section 131 c of the Act to recover possession of the premises from the defendant and when the High Court has refused to interfere with such finding in exercise of its writ jurisdiction there could be no justification whatever for this Court to interfere with the same in appeal under Article 136 of the Constitution
485H 486A B