ash 1 cra-724.11-jt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.724 OF 2011 Shri Shridhar Dattatray Kale. .. Applicant Vs Shrirang Keshav Samant-Nevalkar, since deceased through his Legal Heirs and Representatives - 1. Shri Arun Shrirang Samant-Nevalkar and Others. .. Respondents -- Shri Madhav Jamdar for the Applicant. Shri N.V. Walawalkar, Senior counsel i/by Shri S.M. Sabrad for Respondents. -- CORAM : A.S. OKA, J DATED : 17TH DECEMBER, 2011 ORAL JUDGMENT : . Heard learned counsel appearing for the Applicant and the learned senior counsel appearing for the Respondents. 2. The Respondents are the legal representatives of the original Plaintiff. The Revision Applicant is the legal representative of the original Defendant. The suit premises is a premises admeasuring 30’ x 12’ in a House Property No.1691 (Mangar) situated at Nevalkar Compound at Malwan. The case made out by the original Plaintiff is ash 2 cra-724.11-jt that the suit premises was let out to the original Defendant Smt. Hemlata Dattaraya Kale in the year 1977-1978 and that the original Defendant was staying in the suit premises along with her family. It is alleged in the suit that the son of the original Defendant and her daughter-in-law were residing in another house in Malvan and the original Defendant was residing with them. It is alleged that the daughters of the original Defendant were married and are residing in their respective matrimonial homes. 3. It appears that the original Plaintiff filed a suit in the year 1984 against the original Defendant and her son (present Applicant) for possession of the suit premises. The possession was sought on the grounds of bonafide need, acquisition of a suitable residence and for non-user of the suit premises. In the Written Statement, a contention was raised by the original Defendant that she was a tenant in respect of the suit premises and her son ( the present Applicant) was not concerned with the tenancy in any manner. The said earlier suit was dismissed. 4. In the present suit filed by the Respondent/original Plaintiff, an allegation has been made that from the year 1985, the original Defendant started using the suit premises for running a Kindergarten School without taking permission of the original Plaintiff. ash 3 cra-724.11-jt It is alleged that the said user was illegally started after written statement was filed in the earlier suit. It is alleged that the user of the suit premises has been changed without the consent of the original Plaintiff. It is alleged that on the open land abutting the suit premises which is owned by the original Plaintiff, a shed has been constructed by the original Defendant by encroaching upon the same and has installed a swing to enable the students to play. It is alleged that a platform has been constructed in the open space. It is alleged that the original Defendant has damaged the suit premises and has committed acts contrary to the clause (o) of Section 108 of the Transfer of Property Act, 1882 ( hereinafter referred to as “the said Act of 1882”). It is alleged that the original Defendant is allowing the children in the school to use open space around the suit premises for answering the nature’s call which is creating nuisance and annoyance to the original Plaintiff and the adjoining occupiers. The suit for eviction was filed by the original Plaintiff on the aforesaid allegations. 5. The present Revision Applicant filed a Written Statement contending that his son Niranjan was residing with the original Defendant at the time of her death in the suit premises and, therefore, he is a necessary and proper party being a tenant. It is alleged that for starting a Kindergarten or montessori school, the original Plaintiff had granted oral permission to the original Defendant. It is alleged that a ash 4 cra-724.11-jt swing has been installed prior to the institution of the earlier suit after obtaining permission of the original Plaintiff. It is alleged that the platform has been constructed by the original Plaintiff for himself. It was alleged that the shed in existence in the open space was let out to the original Defendant. The allegation of causing damage to the suit premises as well as the allegation of nuisance and annoyance have been denied by the Revision Applicant. 6. The Trial Court passed a decree for eviction. The Trial Court negatived the ground of nuisance and annoyance. However, passed a decree on the ground incorporated in Clause (a) of Sub-section (1) of Section 16 of the Maharashtra Rent Control Act, 1999 ( hereinafter referred to as “the said Act of 1999”). An Appeal was preferred by the present Revision Applicant. The Appellate Court not only confirmed the decree for possession on the ground of commission of acts contrary to the Clause (o) of Section 108 of the said Act of 1882 (ground in clause (a) of Sub-section (1) of Section 16 of the said Act of 1999) but also passed a decree on the ground of causing nuisance and annoyance. The Appellate Court relied upon the report of the Court Commissioner which was not considered by the Trial Court. 7. The learned counsel appearing for the Revision Applicant firstly submitted that there was no cross-appeal or cross-objection ash 5 cra-724.11-jt preferred by the original Respondent before the Appellate Court and, therefore, the Appellate Court could not have reversed the finding recorded by the Trial Court in favour of the Revision Applicant on the issue of causing nuisance and annoyance. He, therefore, submitted that the decree passed by the Appellate Court on the ground of nuisance and annoyance is illegal. He submitted that the decree on the said ground has been passed only on the basis of the Commissioner’s report. He submitted that apart from the fact that the Court Commissioner was not examined to prove the contents of the report, the Court Commissioner was appointed ex parte without notice to the Revision Applicant/original Defendant and that he visited the suit property without notice. He submitted that even going by the averments made in the Plaint, the suit is barred by limitation. He submitted that the averments made in the Plaint show that the cause of action arose in the year 1985 and the suit has been filed in the year 2006. He submitted that in any case, considering a long inaction on the part of the original Plaintiff, there is a waiver on the part of the original Plaintiff. He relied upon a decision of this Court in the case of Parvati Kewalram Moorjani v. Madanlal Anraj Porwal (1987 Mh.L.J. 917). He submitted that no neighbour or any other person was examined by the Respondent No.1 to prove the acts of nuisance and annoyance. He invited the attention of the Court to the evidence on record and to the fact that the Respondent admitted that the suit premises was being used ash 6 cra-724.11-jt for running a school from the year 1986 and the Respondent was fully aware about the same. He submitted that the suit is governed by Article 66 of the Schedule to the Limitation Act, 1963 and, therefore, the same was barred by limitation. He also pointed out that apart from the waiver, the consent of the original landlord was pleaded which is proved by the long silence on his part. The inaction on the part of the landlord during his lifetime supports the plea of waiver. 8. The learned senior counsel appearing for the Respondents submitted that the ultimate decree of the Trial Court was in favour of the Respondents and, therefore, without filing any cross objection, the Respondents could have always supported the decree by contending that the finding on the issue of nuisance and annoyance ought to have been recorded in his favour. He submitted that as far as the allegations of committing encroachment on the open space are concerned, in the Written Statement the said allegation has been admitted. He submitted that even the act of encroachment on the property of the landlords amounts to causing nuisance and annoyance. He relied upon a decision of this Court in the case of Rajesahed Shahmidsaheb Nadaf- Pinjari v. Dattatraya Appa Rawal (1999 Bom.C.R. 180) and submitted that as far as the ground of nuisance and annoyance is concerned, the cause of action is a continuing or a recurring cause of action. ash 7 cra-724.11-jt 9. I have given careful consideration to the submissions. The suit for eviction filed by the Respondent was decreed and the decree for possession was passed on one of the grounds pleaded by the Respondents. The ground under Clause (a) of Sub-section (1) of Section 16 of the said Act of 1999 ( i.e. acts contrary to clause (o) of Section 108 of the said Act of 1882) was accepted by the Trial Court. However, the finding on the ground of nuisance and annoyance was recorded by the Trial Court against the Respondents. Under Sub-rule (1) of Rule 22 of Order XLI of the Code of Civil Procedure, 1908, it is clearly provided that though the Respondent may not have appealed from any part of the decree, he may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been held in his favour. For supporting the decree by contending that the adverse finding recorded on a particular issue ought to have been recorded in his favour, it is not necessary for the Respondent in the Appeal either to file cross objection or to prefer an Appeal and, therefore, it was always open for the Respondents herein to contend that the issue of nuisance and annoyance ought to have been answered in their favour. As the decree was passed by the Trial Court in their favour, there was no occasion for them to challenge the same by either filing an Appeal or Cross-objection. It must be noted here that a point for determination on the ground of nuisance and annoyance has been specifically framed by the Appellate Court. The ash 8 cra-724.11-jt Paragraphs 29 and 30 of the judgment of the Appellate Court show that a submission was canvassed by the Respondents that the finding on the said issue ought to have been recorded in their favour. The Appellate Court has dealt with the objection raised by the Applicant regarding non-filing of cross-objection and by relying upon a decision of the Apex Court in the case of Ravinder Kumar Sharma v. State of Assam and Others (AIR 1999 SC 3571), the learned Judge has rightly overruled the said objection. I find no error in this behalf. 10. It appears that after filing of the suit, on an application made by the original Plaintiff, an Advocate was appointed as a Court Commissioner. The Trial Court rejected the said report on the ground that the Court Commissioner was not examined. The report of the Commissioner was admissible in evidence in view of Rule 10 of Order XXVI of the said Code and, therefore, the Trial Court committed an error by discarding the said report. It was not necessary for the Respondents to examine the Court Commissioner. If the Applicant had any objection, he could have always cross-examined the Commissioner. 11. The allegations of nuisance and annoyance are in two parts. One allegation is that in the open space, the original Defendant erected a shed and installed a swing to enable the school children to play. Another allegation is that a platform was constructed in the open ash 9 cra-724.11-jt space which was not let out to the original Defendant. The second part of the allegation is that the original Defendant allowed the open space abutting the suit premises to be used by the children in the school and that the children were regularly using the open space for urinating which is continuously creating foul smell thereby causing nuisance and annoyance. The said allegation has been made in Paragraph 5 of the Plaint. In the Written Statement, there is a contention raised that even the open space abutting the suit premises was let out to the original Defendant and that the platform was constructed by the original Plaintiff herself. There is a denial of the allegation that the original Defendant was allowing the children to use the open space for urinating. 12. The first Respondent stepped into the witness box. In the cross-examination, he denied that the open space was let out along with the suit premises. He denied the correctness of the suggestion that the swing was installed by the original Defendant with the consent of the original Plaintiff. 13. In the cross-examination of the first Respondent, a suggestion was given that there is a W.C for the use of the members of another branch of the family of the Respondents near the suit premises and a septic tank installed therein has been damaged. The first ash 10 cra-724.11-jt Respondent has admitted that there is a house property of another branch of his family near the suit premises. Surprisingly, a suggestion was given to the first Respondent by the Advocate for the Applicant that as the servants or the members of the family of the other branch of the Respondents were using the said W.C. and as the septic tank was broken, it is creating foul smell. In fact, a suggestion was given that there was a foul smell, but it was emanating from the said W.C.. Thus, there is an admission of the fact that the foul smell is created which was also noted by the Court Commissioner. However, it is sought to be contended that the said foul smell is created by the use of W.C. in the nearby house property. The suggestions given by the Applicant were denied by the first Respondent. Surprisingly, the Applicant did not step into the witness box and did not examine any witness to substantiate the contention that though there was a foul smell, the same was created by using the W.C. in the adjoining property. Considering the suggestion given by the Applicant in the cross-examination of the first Respondent, it was necessary for the Applicant to adduce evidence to substantiate the reason for bad odour or foul smell. The fact that the open space was being used by the original Defendant is admitted. However, the Applicant did not step into the witness box to prove that even the open space was let out by the original Plaintiff to the original Defendant. The Appellate Court has recorded a finding that the perusal of the report of the Court Commissioner shows that the open space was being ash 11 cra-724.11-jt used by the Applicant as alleged by the Respondent and the Court Commissioner has noted the foul smell created by the use of open space for urinating by the school children. The report of the Court Commissioner discloses that when he visited the site, the second Respondent was present. The Commissioner has noted that the open land was used by the school children for answering nature’s call and there was a foul smell. In the light of the aforesaid factual position, the Appellate Court recorded a finding against the Applicant on the ground of nuisance and annoyance. 14. As far as the ground of nuisance and annoyance is concerned, this Court in the case of Rajesaheb Pinjari (supra) held that the actionable nuisance or annoyance is a recurring cause of action. Therefore, the plea of bar of limitation is not available as far as this ground is concerned. What is held as proved is the nuisance created by the use of the open space by the children. The act of using open space which was not let out amounts to encroachment thereby causing nuisance and annoyance. The decision relied upon by the Applicant in the case of Parvati Kevalram Moorjani (supra) dealt with the issue whether the tenant constructing a water tank in the open space amounted to permanent construction. In the revisional jurisdiction, it is very difficult to find fault with the finding of the Appellate Court on issue of nuisance and annoyance. As the decree deserves to be ash 12 cra-724.11-jt confirmed on this ground, it is not necessary to deal with the other grounds of eviction under Section 16(1)(a) of the said Act of 1999. 15. Hence, I pass the following order: ORDER : The Civil Revision Application is rejected. The decree for possession shall not be executed for a period of three months from today. ( A.S. OKA, J )