Appeal No 447 of 1982
From the Judgment and Order dated 671981 of the Bombay High Court in WP No 1967 of 1981
475 BK Mehta and Vimal Dave for the Appellant
UR Lalit Mrs J Wad and Mrs Tamali Wad for the Respondents
The Judgment of the Court was delivered by VENKATACHALA J
In this appeal by special leave the summary rejection by the Bombay High Court of an application filed under Article 227 of the Constitution for setting aside an eviction order made by the Court of Small Causes at Bombay the trial court under clause c of sub section 1 of section 13 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 to be referred to as the Act  and upheld by the appellate Division Bench of the same court the appellate court is questioned
Sudarshan Building No 2 Shivaji Park Road No3 Bombay 28 is a storeyed building comprised of a large number of flats occupied by different tenants
Flat No 10 in the Second Floor of that building to be referred to as the premises  was in occupation of the appellant defendant eversince the year 1952 as its tenant under Kherodkar the owner of the whole of that building
In the year 1958 when Kherodkar mortgaged with possession the said building in favour of respondents plaintiffs the defendant and other tenants in different flats of that building became tenants under plaintiffs usufructuary mortgages and continued as such tenants on payment of monthly rents to them
But by a quit notice dated July 3 1967 the plaintiffs determined the monthly tenancy of the defendant 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
That was a ground which entitled the landlord under clause c of sub section 1 of section 13 of the Act to recover possession of the premises from the tenant
That ground had been based on plaintiffs  allegations of threats of murder posed by the defendant to the neighbouring occupiers abuses hurled at neighbouring occupiers by his sons whistling at neighbouring occupiers by the defendant s sons spitting against the walls and in the common staircase area of the building by the defendant s sons obstructions offered by the defendant his wife sons and servants to the neighbouring occupiers to reach the common terrace of the building by a staircase and removal by 476 them of aerials of radios of the tenants in the other flats of the building which had been fixed above the common terrace obstructions offered to the landlords and their workers to inspect the common terrace unauthorised errection by the defendant in the common terrace area certain machinery and running it during nights causing disturbance to sleep of neighbouring occupiers and also unauthorised used by the defendant of the water in common over head storage tanks in the common terrace area for his business purposes depriving other tenants of the normal use of such water
The defendant however resisted the claim for recovery of possession of the premises made
in that suit filing a written statement thereto denying the allegations of nuisance and annoyance levelled against him his wife sons and servants and urging that those allegations even if established did not constitute the ground of nuisance or annoyance envisaged under clause c of sub section 1 of section 13 of the Act as a ground for recovery of possession of premises from a tenent
It was also urged therein by the defendant that the ground for recovery of possession of premises from a tenant under clause c thereof was not available to plaintiffs for they being usufructuary mortgagees of the building were not landlord  within the meaning of that expression in sub section 1 of section 13 of the Act as would entitle them to recover possession of premises from a tenant
In so far as the common terrace the defendant s unauthorised use of which was complained of by the plaintiffs the defendant urged therein that he being a tenant of that terrace in addition to the premises was entitled to put it for the use of his choice and prevent other tenants in the building from its common use
It was further urged therein that the suit having been instituted by the plaintiffs to pressurise the defendant and extract from him higher rent for the premises was vitiated by malafides
The trial court which tried the suit on an appraisal of the oral and documentary evidence adduced by the parties recorded its findings on issues arising for its determination in that suit in favour of the plaintiffs and against the defendant
Consequently it decreed the suit of the plaintiffs for recovery of possession of the premises from the defendant
The appellate court before which the decree of the trial court was appealed against by the defendant on its re appraisal of the evidence affirmed the findings of the trial court and dismissed the appeal
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 by the High Court in limine
The defendant has questioned 477 in this appeal by special leave the correctness of the decree of the trial court made against him for recovery of possession of the premises by the plaintiff the decree of the appellate court affirming the decree of the trial court and the order of the High Court rejecting his writ petition
In support of the appeal three contentions were raised before us by Shri BK Mehta the learned senior counsel for the appellant defendant
But those contentions were strongly refuted by Shri UR Lalit the learned senior counsel for respondents plaintiffs
Taking into consideration the serious nature of the contest we shall examine the merit in every one of the contentions rather in detail
First of the said contentions which was urged as a legal contention by the learned counsel for the appellant was that an usufructuary mortgagee was not entitled to recover possession of a premises from a tenant under section 131 c of the Act pleading the ground that the tenant or any person residing with him in such premises was guilty of conduct which is a nuisance or annoyance to the adjoining and neighbouring occupiers when the expression Land lord  in section 13 of the Act cannot be said to include an usufructuary mortgagee
Provisions in the Act in so far as they become necessary for a proper appreciation of the said contention could be excerpted at the outset
Section 131 of the Act 13
When landlord may recover possession
1 Notwithstanding anything contained in this Act a landlord shall be entitled to recover possession of any premises if the Court is satisfied a b c that the tenant or any person residing with the tenant has been guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers  d 478 e f g that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of public charitable trust that the premises are required for occupation for the purposes of the trust or h hh hhh 2 No decree for eviction shall be passed on the ground specified in clause g of sub section 1 if the Court is satisfied that having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the land lord or the tenant greater hardship would be caused by passing the decree than by refusing to pass it
Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises the Court shall pass the decree in respect of such part only
Explanation For the purposes of clause g of subsection 1 a b the expression landlord shall not include a rentfarmer or rent collector or estate manager Section 53 of the Act  5
Definitions
In this Act unless there is anything repugnant to the subject or context 479 3 landlord means any person who is for the time being receiving or entitled to receive rent in respect of any premises whether on his own account or on account or on behalf or for the benefit of any other person or as a trustee guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant and includes any person not being a tenant who from time to time derives title under a landlord and further includes in respect of his sub tenant a tenant who has sub let any premises and also includes in respect of a licensee deemed to be a tenant by section 15A the licensor who has given such licence Whether the expression landlord  in sub section 1 of section 13 of the Act cannot be said to include an usufructuary mortgagee  where the tenanted premises is the subject of usufructuary mortgage is the question which requires our answer in the light of the provisions of the Act
As could be seen from the definition of usufructuary mortgage  in clause d of section 58 of the the TP Act an usufructuary mortgagee is a transferee 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 mortgage 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
Clause 3 of section 5 of the Act which contains the definition of landlord  states that under the Act landlord  means any person who is for the time being receiving or entitled to receive rent in respect of any premises on his own account and includes any person 480 not being a tenant who from time to time derives title under a landlord unless there is anything repugnant to the subject or context
There comes section 131 of the Act entitling landlord to recover possession of any premises from his tenant on the ground envisaged under clause c thereof that is the tenant or any person residing with the tenant being guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers and that 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 said ground
Further if the legislative intendment was that the usufructuary mortgagee was not to be regarded as a landlord for recovering possession of a tenanted premises on any of the grounds envisaged under sub section 1 of section 13 of the Act it would not have omitted to state so expressly particularly when it had been so stated in clause b of the explanation to sub section 2 of section 13 of the Act as regards rent farmer  or a rent collector  or an estate manager  who would have been otherwise a landlord entitled to recover possession of a tenanted premises from the tenant under clause g of sub section 1 of that section
Indeed the decision of this Court in SB Abdul Azeez By Lrs vs Af
Maniyappa Setty and Others   throws full light on the question under consideration for the question decided there is virtually identical
That question was whether an usufructuary mortgagee was entitled to recover possession of a premises under section 211 proviso h of the Karnataka Rent Control Act 1961 the KRC Act as a landlord envisaged therein
In deciding that question with reference to the expression landlord  found in section 211 proviso h of KRC Act the definition of that expression landlord  found in section 3h of the KRC Act and the explanation to clause 4 found in section 211 proviso of K RC Act excluding a rent farmer a rent collector and an estate manager from being a landlord for recovery of possession of a premises from a tenant on the ground of bona fide use and occupation and certain provisions of the TP Act this Court stated thus It therefore follows that the Legislature if wanted that a mortgagee with possession should not be equated with the owner of the premises and should be denied the benefit of seeking a tenant s eviction under section 211 481 h the legislature would have undoubtedly categorised a mortgagee with possession also as one of the excluded class of landlords for the purposes of section 211 h of the Act
Obviously therefore the legislature has not wanted a mortgagee with possession to be excluded of his right to seek eviction of a tenant from the mortgaged premises under section 211 h of the Act
Thirdly a mortgagee with possession is enjoined by section 76a of the to manage the property as a man of ordinary prudence would manage it if it were his own
As such the mortgagee s acts if prudently done could bind the mortgagor even after the redemption of the mortgage
A mortgagee with possession steps into the shoes of the mortgagor and becomes entitled to all the rights of the mortgagor and the only right left with the mortgagor is the right of redemption
A mortgagee with possession is entitled to be in possession of the mortgage property as long as it is not redeemed
If the mortgagee with possession leases back the property to the mortgagor he acquires the rights of a lessor and is entitled to enforce the terms of the lease against the mortgagor vide Mathura lal vs Keshar Bai
On account of all these factors there can be no doubt that a mortgagee with possession stands very differently from other kinds of landlords en visaged under section 3h of the Act
He is therefore entitled as much as the owner himself to seek recovery of possession of the leased premises from a tenant for his own bona fide requirements of use
 What is said by this Court in the above decision as regards the right of the usufructuary mortgagee to recover possession of a premises from tenant as a landlord envisaged therein under section 211 proviso h in our view must necessarily apply to a landlord envisaged in section 131 of the Act
It would be so because i that the expression landlord  in section 131 C of the Act is not used in a context different from the one in which the expression landlord is used in section 211 proviso h of the KRC Act ii that the definition of landlord  and explanation as to is not the landlord  are common to both the Acts and iii that the legal position of an usufructuary mortgagee under the KRC Act is not different 482 from the legal position of an usufructuary mortgagee under the Act since the rights and liabilities of an usufructuary mortgagee concerned in both Acts are governed by the provisions of TP Act
Thus it becomes clear that 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
The decision in Nanalal Girdharlal and Anr
vs Gulamnabi Jamalbhai Motorwala and Ors 1972 13 Gujarat Law Reporter 880 relied upon by leaned counsel for the appellant in support of the first contention does not lend such support
One of the questions with which the Gujarat High Court was concerned in that decision was whether one out of several co owners was entitled to maintain a suit for eviction against the tenant under the Act
In considering that question the Court took the view that the landlord referred to in section 12 and section 131 of the Act was not a landlord as defined in section 53 but was a landlord who was entitled to possession of the premises on a determination of the tenancy under the ordinary law of landlord and tenant that is under section 106 of the TP Act
It is this view which was sought to be made use of by learned counsel for the appellant to contend that the landlord under section 131 of the Act cannot be an usufructuary mortgagee
But the said view of the High Court that a landlord referred to under sections 12 and 131 of the Act is a landlord who is entitled to possession of premises on determination of the tenancy under section 106 of the TP Act itself cannot now be good law because of the nine Judges  Bench decision of this Court in V Dhanapal Chettiar vs Yesodal Ammal   where the scope of the provisions of sections 5 12 and 13 of the Act in the context of section 106 of the TP Act is considered and held otherwise thus  Adverting to the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 it would be found from the definition of section 5 that any person remaining in the building after the determination of the lease is a tenant within the meaning of clause 11
Section 12 of the Bombay Act says that the landlord shall not be entitled to the recovery of possession of any premises so as long as the conditions mentioned in sub section 1 are fulfilled nor any suit for recovery of possession shall be 483 instituted by a landlord against a tenant on the happening of the event mentioned in sub section 2 until the expiration of one month next after the notice is served on the tenant in the manner provided in section 106 of the  as required by the said sub section
Section 13 provides that a landlord may recover possession on certain grounds
Is it not plain then that on the happenings of the events or on the fulfilment of the conditions mentioned in sections 12 and 13 etc
the landlord becomes entitled to recover possession from the tenant otherwise not
It will bear repetition to say that under the in order to entitle the landlord to recover possession determination of the lease is necessary as during its continuance he could not recover possession while under the State Rent Act the landlord becomes entitled to recover possession only on the fulfilment of the rigour of law provided therein
Otherwise not
He cannot recover possession merely by determination of tenancy
Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy
The first contention urged in support of the appeal that an usufructuary mortgagee of tenanted premises cannot file a suit for recovery of its possession from the tenant under section 131 c of the Act does not therefore merit acceptance and is rejected
The second contention of the learned counsel for the appellant defendant relates of correctness of the findings of the appellate court recorded respecting acts of nuisance and annoyance constituting the ground for recovery of possession of premises by the plaintiffs from the defendants
According to the learned counsel those findings not having been based on the evidence on record become unsustainable
We are unable to find any merit in this contention
The findings as to the acts of nuisance id annoyance attributable to the defendant and the persons who were residing in the premises are i that the defendant who was a tenant in a premises tenament in the storeyed building erected a Rangeen Min Textile Printing Mill on the terrace of the storeyed and ran it during nights so as to make the occupiers of the adjoining and neighbouring 484 tenaments in the storeyed residential building suffer the vibrations and noise in the building arising on account of the running of the Mill and loose their quiet and sleep during night ii that the defendant unauthorisedly utilised the water stored in the common over head tanks on the terrace meant for domestic use of all the occupiers of the tenaments in the building for running his run Rangeen Mill a non domestic purpose iii that the defendant 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 the defendant and the persons residing in the premises were wrongly preventing the 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
These finding of the lower appellate court it cannot be said 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 defendant 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
The defendant and the persons residing with him in the premises have committed some of the acts respecting which the aforesaid findings are recorded by the appellate court because of the defendant s unfounded claim that he had taken the terrace on lease independently of the premises in which he was an occupant and as such was not only entitled to its exclusive use but also had the right to prevent the neighbouring occupiers of the tenaments in the building from its use
The trial Court as well as the appellate court on examining the claim put forth by the defendant have found on the basis of material on record that it was a false claim and the defendant had not taken on lease the disputed terrace as was pleaded by him
Therefore as seen from the judgment of the appellate court its findings in relation to the aforesaid acts of the defendant 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 as contended for
Thus we are unable to see any justification in this Appeal by Special Leave to interfere with such findings of facts recorded by the appellate court virtually affirming the findings of fact 485 recorded by the trial court
The second contention raised in support of the appeal must therefore fail
It is accordingly rejected
The third and the last contention urged in support of the appeal was that 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 forming a ground for recovery of possession of a premises from the tenant under section 131 c of the Act
In support of the said contention reliance was placed on decisions of the Gujarat High Court in Dhabhi Lalji Kalidas vs Ramniklal Somchand Mehta 1975 16 Gujarat Law Reporter 824 and Gaurishanker  Babulal Govindji vs Bhikhalal Chhaganlal  Ors 1977 18 Gujarat Law Reporter 805
This contention in our view again is devoid of merit
The decisions relied upon also do not support the contention
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 tenant
In the case with which we are concerned the acts of nuisance or annoyance complained of are committed by the tenant and persons residing with him in the premises which is a tenament flat lying amidst other tenaments flats of the one and same storeyed building
The acts of the defendant 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
Further when the particular acts of the defendant or persons residing with him in the premises flat of a storeyed building said to have caused nuisance or annoyance to the occupiers of adjoining or neighbouring occupiers of tenaments flats in the very same storeyed building are seen they cannot make us think that they were not clear acts of nuisance or annoyance envisaged under section 131 c of the Act because of the intolerable inconveniences sufferings humiliations which must have been caused to the adjoining or neighbouring occupiers due regard being given to the locality of the storeyed building the class of the people living in the tenAments of the storeyed building and the nature of living to which they 486 were accustomed
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 us to interfere with the same in this appeal under Article 136 of the Constitution
The decision in Dhabhi Lalji Kalidas vs Ramniklal Somchand Mehta supra relied upon to support the third contention is a case decided by Single Judge of the Gujarat High Court
The learned Single Judge who examined in that case the question whether the use by washerman who was tenant of a premises some chemicals for washing clothes in a tenanted premises could have amounted to act of nuisance or annoyance to adjoining or neighbouring occupiers as entitling the landlord to recover possession of tenanted premises under section 131 c of the Act held that the ill effects produced on adjoining or neighbouring occupants cannot be found out in the absence of evidence of chemical experts and therefore the ground for recovery of possession of tenanted premises under section 131 c of the Act was unavailable
We are unable to see how this decision could help the contention of the appellant under our considera tion
The decision in Gaurishanker supra relied upon to support the third contention is again that of a Single Judge of the Gujarat High Court
It was a case where the learned Judge was concerned with the question whether a quarrel in the household of a tenant could be a ground for eviction of a tenant under section 131 c of the Act
The learned Judge who held that quarrels in a domestic household of a tenant can never constitute a nuisance or annoyance within section 131 c of the Act pointed out that nuisance or annoyance contemplated under section 131 c of the Act as ground for eviction of tenant from a premises must be of a serious character in nature intensity and frequency
We do not see how this decision could advance the contention of the appellant now under consideration
In fact in the case on hand we have held that the courts below having regard to the nature intensity and duration of the acts complained of and their HI effects on the normal living of adjoining or neighbouring occupiers have rightly found them as acts of nuisance or annoyance envisaged under section 131 c of the Act
487 Hence the third and the last contention urged in support of the appeal being also devoid of merit is rejected
In the result this Appeal fails and is dismissed with costs
The advocate s fee payable by the appellant defendant to respondents plaintiffs is fixed at Rs 2000
TNA Appeal dismissed


Summary:
The prosecution alleged that the appellant borrowed a sum of Rs 450 from the deceased and had executed two hand notes exhibit 7 and exhibit 8 promising to repay the amount on 2131976
On the said date the deceased accompanied by his nephew PW3 proceeded to the village of the appellant and as he was getting late PW3 carried with him a torch light
The distance of the house of the deceased from that of the appellant was about one furlong
The appellant was present in the fields in front of his house and on being asked as to why he had not come to return the money he asked them to wait there and proceeded towards his house When the appellant did not return for some time the deceased alongwith PW3 proceeded towards the house of the appellant when they found him and his two brothers coming towards them variously armed one had a crowbar while the others had a crooked dao and a kupi dao with them
PW3 apprehended some danger from the appellant and his brothers but his uncle told him that since they had done no wrong they need not be afraid of any assault
On coming near the deceased and PW3 one of the brothers gave a blow with a crowbar while the other two brothers assaulted the deceased thereafter
PW3 pulled the deceased towards his house and implored the accused not to assault him
At the asking of his uncle PW3 ran away to his house and gave the information to the wife of the deceased and also narrated the occurrence to PW4
The wife of the deceased went to PW6 and after telling him as to what had been told to 390 her by PW3 she requested him to accompany her to the place of occurrence
On reaching the place of occurrence they found him lying on the spot with injuries on his person but he was still alive
Two of the PWs brought a bullock cart and PW7 after lifting the body with some difficulty brought it to his house and kept it in the verandah
However before any medical aid could be provided the deceased succumbed to the injuries at night
The first information report was lodged at the police station at 1230 pm by PW2
During the investigation some weapons including an axe were seized from the house of the accused and on the same day one of the brothers was arrested at 645 pm and the other two brothers surrendered subsequently in the court
The Investigation Officer prepared a sketch of the place of occurrence and sent the body for postmortem examination
The appellant alongwith his brothers were tried for offences under section 30234 IPC for the murder of the deceased and the Sessions Judge convicted all the three brothers for the said offence and sentenced them for life
On appeal by the three brothers the Division Bench of the High Court upheld the conviction and sentence of all the three
The instant SLP was admitted as regards one petitioner only and notice was issued
The SLP of the second petitioner was dismissed while the third brother did not file any appeal
Allowing the appeal and acquitting the appellant this court HELD 1
Conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole eye witness passes the test of reliability
So long as the single eye witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone
However where the single eye witness is not found to be a wholly reliable witness in the sense that there are some circumstances which may show that he could have an interest in the prosecution then the courts generally insist upon some independent corroboration of his testimony In material particulars before recording conviction
It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect
393E F 391 2
The instant case the medical evidence is consistent with the theory that the deceased had been assaulted only by one person and not by all the three brothers as alleged by the prosecution
The possibility therefore that Mahendra accused alone had caused injuries on the deceased cannot be ruled Out
May be on account of the recovery of the two bonds Ext
7 and Ext 8 from the house of Anil he was also implicated
395G 3
The origin of the fight is totally obscure and the prosecution has not explained the genesis of the origin of the fight either
It is not even the case of the prosecution that Anil had refused to repay the loan or that any hot words or abuses had been exchanged between Anil and the deceased when the later had demanded from him the repayment of the loan
395H 396A 4
In view of the infirmities of the prosecution evidence it would not be safe to rely upon the testimony of Ajoy PW3 the sole eye witness without looking for independent corroboration and as already noticed the corroboration furnished by the prosecution unlike in the case of Mahendra the appellant s brother is negative in character in so far as the involvement of Anil appellant is concerned
396B 5
The appellant was held entitled to the benefit of doubt and granting him that benefit his conviction and sentence for the offence under Section 30234 IPC were set aside
396C