R.A. Jahagirdar, J.
1. The petitioner is a tenant of four rooms on the ground floor of a building bearing House No. 302 in Baliram Peth in Jalgaon City. These four rooms along with two other rooms had taken by the petitioner as a tenant sometime in the year 1957 and the agreed rent of the premises at that time was Rs. 67 per month. The petitioner has contended, and not without justification, that apart from these six rooms the open space surrounding the building was also a part of the demised premises. Detailed reference will be made to that contention later in this judgement. On 15th December, 1960, under a sale deed at Exhibit 80 respondent No. 1 in this petition, hereinafter referred to as 'the respondent' purchased the said building. For sometime thereafter the relations between the respondent and the petitioner seem to have been sufficiently cordial so much so that the petitioner was persuaded to surrender possession of two rooms to the respondent. After such surrender the rent of the remaining four rooms was fixed at Rs. 45 per month.
2. In the year 1962, however, there was a suit filed by the petitioner against the respondent restraining the respondent from interfering with the petitioner's right to go the suit premises through the main gate of the compound in which the building is situated. The fact that the petitioner was compelled to file a suit against the respondent for a relief of the type mentioned above itself indicates that there was obstruction caused by the respondent to the petitioner in the lawful enjoyment of the premises leased to the petitioner. In fact by the compromise, which is at Exhibit 75, the rights of the petitioner existing prior to the suit were restored. This however, did not deter the respondent which is a registered Trade Union, from indulging, with the assistance of its members, in several illegal acts such as wrongfully confining the petitioner to his house. This wrongful confinement has been referred to in the trade union languages as 'Gherao'. Subsequently under the threat of criminal prosecution or otherwise the then Secretary of the respondent Sangh executed a document at Exhibit 112 wherein he in unqualified terms owned his mistake and gave an assurance of good conduct in future. In this document at Exhibit 112 it has been further mentioned by the then Secretary of the respondent Sangh that he will allow the petitioner all access for the purpose of carrying bicycles and parts of the same to and from the building. This is also a tell-tale circumstances of a fact which was asserted by the petitioner and denied by the respondent in the courts below. The respondent thereafter filed a suit being Civil Suit No. 337 of 1964, for possession of the premises tenanted by the petitioner on the ground that the same were required by the respondent reasonably and bona fide for their own use and occupation. That suit has been admittedly dismissed and the respondent was unable to obtain possession of the suit premises.
3. By notice at Exhibit 61 dated 12th of August, 1968, the respondent again terminated the tenancy of the petitioner and called upon him to vacate the suit premises. In this notice several acts allegedly committed by the petitioner and allegedly causing damage to the suit property were mentioned. Since the petitioner did not comply with the requisition for vacating the suit premises, the respondent filed the present suit, being Regular Civil Suit No. 141 of 1969 on 21st of March, 1969 in the Court of the Civil Judge, (Junior Division) at Jalgaon. In this suit almost all the founds that are normally available to a landlord to evict his tenant under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as 'the Bombay Rent Act', were urged in support of the prayer for eviction. On the pleading of the parties the learned trial Judge raised as many as twelve issues and answered every one of them against the respondent. It was held, for example, that the respondent has not proved that the petitioner is causing nuisance to the respondent by tethering buffaloes and storing articles in the open space, that the petitioner was not guilty of arrears of rent, that the respondent did not require the suit premises reasonably and bona fide for its own use and occupation, that if a decree for possession were passed it would cause greater hardship to the petitioner, and that though the petitioner had denied alternative residential accommodation the respondent was not entitled to possession because the suit premises were let out for non residential purposes also. The learned trail Judge has considered, as he ought to have considered, all the evidence which has come on record and after appropriate appreciation of the said evidence has given findings on all the issues arising in the suit.
4. It may at this stage be mentioned that in the trial Court the only witness who was examined on behalf of the respondent was the present Secretary of the respondent Union who himself was nowhere in the picture when the original lease was executed by the original owner of the building in favour of the petitioner. Indeed in his evidence he has mentioned that he has no knowledge about the various facts involved in the suit.
4-A. The learned trial Judge dismissed the suit by his judgement and order dated 1st of October, 1974. The respondent preferred an appeal, being Civil Appeal No. 240 of 1974, which was heard and allowed by the learned District Judge of Jalgaon by his judgement and order dated 18th of April, 1977. It is this order which is the subject-matter of challenge in this petition under Article 227 of the Constitution.
5. In the appeal referred to above, the learned District Judge has also almost on all points held against the respondent. In fact holding against the petitioner only on two grounds, to which I will make a brief reference shortly, the learned District Judge allowed the appeal and thus decreed the suit. Before referring to the reasoning of the learned District Judge on the two questions which were decided by him against the petitioner, it would not be out of place to mention some of the observations which the learned District Judge has made in respect of the respondent. They are to be found in paragraph 22 of the judgement of the learned District Judge. The learned District Judge has noticed that the evidence shows that since the year 1962 the relations between the office-bearers of the respondent Sangh on the one hand and the petitioner on the other have deteriorated and they became inimical prior to the issuance of the quit notice. The learned District Judge further recognised the fact that the members of the respondent started pestering the petitioner so that the petitioner would be compelled to vacate the suit premises. The fact that on one occasion the petitioner was wrongfully confined by about eight hundred members of the respondent Sangh has also been recognised by the learned District Judge. It is after this incident that the then Secretary of the respondent Sangh had to give an apology and an undertaking for future good conduct.
6. In the year 1968, two persons of the respondent Sangh unauthorisedly entered the suit premises and caused harassment to the petitioner. That gave rise to Criminal Case No. 1121 of 1968. Those two persons convicted in the trial Court were acquitted on compounding the matter in the appeal Court. I has also been mentioned that the respondent has approached the press and made several allegations against the petitioner. They are to be found in Exhibit 70. The learned District Judge was clearly of the opinion that the office bearers of the respondent Sangh 'are in a refractory mood, out to dislodge the respondent (the petitioner) by adopting means, fair as well as unfair'. With this backdrop to the litigation, the learned trial Judge had made appropriate appreciation of the evidence and had come to the conclusions which denied the decree for eviction to the respondent.
7. It is now well-settled that in a matter of appreciation of evidence and the credibility of the witnesses the opinion of the trial Judges should not be lightly disturbed in appeal. See Bombay Cotton Manufacturing Company v. Motilal Shivial, Indian Law Reports XXXIX Bombay 386. In the present case, the question was of appreciation of the oral evidence mostly and evaluation of the same. In such a case an appeal Court should not differ lightly from the finding of the trial Court. This, of course, is not to deny the jurisdiction which is undoubtedly vested in the appeal Court as a final Court of facts to give findings on all questions of facts which are to be taken by this Court as binding while exercising the jurisdiction under Article 227 of the Constitution. But one cannot lose sight of the fact that at least in the present case the question was of appreciation of the evidence in the backdrop which I have mentioned above and mostly of the oral evidence that was led in the trial Court. I have also mentioned earlier that on behalf of the respondent only one witness was examined and that witness was hopelessly incompetent to depose to any facts on the basis of which the respondent could claim any relief. He did not possess any knowledge about the lease which had been given by the original owners of the building in favour of the petitioner. The witness, being plaintiff's witness No. 1 one Balu Mallu, has been fair enough to admit that he did not know the name of the original owner, that he did not know his whereabouts and that he did not make enquiry about the terms of the original tenancy. In the light of these admissions it cannot be seen as to how he could depose to the terms of the tenancy, the area which was given to the petitioner by the original owner and the purpose for which the lease was granted.
8. As against this, the petitioner who is the tenant and who got the lease in his favour is a competent witness because it is his evidence which is the primary evidence. Apart from this , he has got examined one Madhav Moreshwar as defendant's witness No. 2 .This Madhav Moreshwar was looking after the property on behalf of the owners when the lease in favour of the petitioner came into existence. The evidence of Madhav Moreshwar and the evidence of the petitioner himself, therefore, constituted legal evidence on which reliance could safely be placed by the courts of facts. These are some of the things which have been unfortunately ignored by the learned District Judge while he proceeded to give what could have been, on a proper exercise of jurisdiction, findings of fact uninterferable by this Court under Article 227 of the Constitution.
9. I am constrained to make these observations by way of preface because I notice, after a careful examination of the judgement of the Court below, that the findings given by the learned District Judge and have to be decided by me in this petition. The first question is whether the lease granted to the petitioner was only for residential purpose or was for a composite purpose of residence and business. On this question the evidence on behalf of he respondent is zero while there is evidence on behalf of the petitioner-oral, documentary and circumstantial. In the first place, there is the statement of the petitioner on oath that he had taken the suit premises both for residence and business, the business consisting of storing bicycles and parts of the bicycles, which were being sold by him from another shop. The lease was thus for a non-residential purpose is thus clearly established on the testimony of the petitioner himself. Fully Corroborating his testimony is the evidence of Madhav Moreshwar who had first- hand knowledge of the talks that took place between the petitioner and the original owner of the property and, therefore, he was competent to speak about the purpose of the lease. Thirdly there is Exhibit 112, to which I have already made a reference above, which is clear-cut terms mentions that the then Secretary of the respondent Sangh undertook, as an assurance of future good conduct, not to disturb the petitioner from taking and bringing bicycles and their parts from and the suit premises. That the suit premises are being used for a long time for the purpose of atleast storing bicycles and bicycle parts is almost an admitted position. That indeed is the allegation of the respondent in the notice at Exhibit 61 and that is the recognition given in Exhibit 112 by the then Secretary of the respondent Sangh. In the trial in the instant case not a shred of evidence was led on behalf of the respondent which would even in the remotest way suggest that the suit premises had not been let out for the composite purpose of business and residence as contended by the petitioner. If this is so I do not see how it was open to the learned District Judge to reverse the finding given by the learned trial Judge which has been on legal evidence.
10. The learned District Judge followed a somewhat unusual procedure by dubbing Madhav Moreshwar as an obliging witness. I do not see how this witness deserves the description given by the learned District Judge. That Madhav Moreshwar was acquainted with the facts of the original lease in favour of the petitioner could not for a moment be disputed. If his evidence is consistent with what has been mentioned by the petitioner and with the other documentary and circumstantial evidence on record, one cannot appreciate as to how Madhav Moreshwar could be brushed aside that easily as done by the learned District Judge. In my opinion, therefore, the finding recorded by the learned District Judge is a finding without any legal evidence and is contrary to the evidence on record. That finding has to be set aside by this Court even in the exercise of the jurisdiction under Article 227 of the constitution.
11. Mr. Sawant, the learned Advocate appearing for the respondent has invited my attention to the well recognised limitations of the power of this Court under Article 227 of the Constitution. I am not unaware of the same. Indeed, bearing constantly those limitations in mind I am constrained to set aside the finding given by the learned District Judge. Reliance placed by Mr. Sawant on a judgement of the Supreme Court in Uttamchand v. S.M. Lalwani, : AIR1965SC716 is, in my opinion, misplaced. In that case it was held that where there is no written lease the Court must apply the test of the dominant intention of the parties and determine the character of the lease by asking itself as to what was the dominant intention of the parties in executing the document. In the present case, the intention of one party atleast has been deposed to by that party itself. The intention of the other party had been deposed to by Madhav Moreshwar. There is no intention of the contrary intention at all. In these circumstances, the finding that the suit premises were not let out for residential and business purpose cannot be sustained. What is worse, the learned District Judge himself in half mind relating to this question. After discussing what he regarded as the relevant evidence, the learned District Judge at the end of paragraph of his judgement has recorded that the purpose of lease at the date of letting was chiefly and predominantly residence. This necessarily means that the lease was not for residence alone. If this is so, it must be held, as the learned trial Judge has held, that the lease was for a composite purpose of residence and business. The contest between the parties on the purpose of the lease a necessitated because if it is found that the lease was one for residential only, then the acquisition of alternate residential accommodation made by the petitioner would have provided a ground for eviction under section 13(1)(i) of the Bombay Rent Act. If the lease is for a composite purpose, then the ground mentioned in section 13(1)(i) would not available to the landlord for evicting the tenant. It has been so held in Kartar Singh v. Chamanlal, : 1SCR9 .
12. The next ground which has been held proved against the petitioner is that the petitioner is guilty of acts of nuisance by tethering cattle in the open space surrounding the rooms occupied by him as a tenant. The trial Court has not given a clear-cut finding in favour of the petitioner that the surrounding open space has been given to him as a part of the lease. But considering the previous litigation, namely Regular Civil Suit No. 190 of 1962 and the compromise entered thereafter, the learned trial Judge found that 'it is abundantly clear from above record that the plaintiff has himself given the possession of the open space of the defendants of his user, and, therefore, he is stopped from challenging the same.' From this, this much is clear that the petitioner has been allowed at all times to use atleast part of the open space for construction of a shed in which a she-buffalo has been tethered. That the shed has been in existence in the open space which is behind the building since atleast the year 1962 is also borne on the record because the shed has been assessed by the Municipality for property tax. If this is so from the year 1962 to 1969, when ultimately the suit was filed, no complaint of nuisance has been made on behalf of the respondent at any time. Even in the notice leading to the suit, namely Exhibit 61, the use of the shed or the open space for the purpose of tethering cattle and storing fodder has not been mentioned as an act of nuisance, but as an act causing damage to the property of the respondent. The use of the open space and the shed constructed thereupon could not, therefore, have been regarded as an act of nuisance at all atleast till the suit notice was given. Indeed this seems to have been recognised by the learned District Judge himself. The learned District Judge, however, finds fault with the petitioner because the later did not, after the notice Exhibit 61 was issued, discontinue the use for tethering cattle immediately. While appreciating the conduct of the petitioner in this context it must be remembered that the notice at Exhibit 61 was issued as a prelude for going to the contest in a Court of Law and did not in terms call soon the petitioner to remove or abate the nuisance allegedly committed by him. If that has been done by the respondent and it thereafter the petitioner had not removed or abated the nuisance, his conduct could have furnished a ground for eviction as mentioned in section 13(1)(c) of the Bombay Rent Act.
13. In this context it would not be inappropriate to revert to the judgement of the trial Court wherein the law as well as the facts have been appreciated in proper focus. The learned trial Judge has noticed that the respondent did not examine any neighbouring occupier in order to show that the tethering she-buffalo and storing articles in the open space caused nuisance or annoyance. Apart from the fact that there were no tenants in the building except the petitioner, the learned trial Judge noticed that the petitioner has been tethering she-buffalo almost from the date of commencement of the tenancy. The user of the open site is agreed user. The learned Judge has proceeded to mention further as follows :---
'It has not been shown how the plaintiff requires to pass the shed for going to go to first floor and to go to the latrine or to eastern room. It is pertinent to note that there is a gate in the centre of the ground floor and there is no necessity for the plaintiff to approach the shed and the place where the fodder has been stored. It is urged that the stock of fodder is of week only. It is not shown that plenty of fodder stored which would create damage to the building.'
14. Incidentally it may also be mentioned that the grievance of the respondent against the petitioner on the question of the tethering of the cattle and the storing of the fodder was on the ground that it would cause damage to the property rather than nuisance to the respondents or the adjoining occupiers. I am, therefore, of the opinion that the nature of the nuisance and the persons to whom the nuisance is caused and the quantum of the actionable nuisance have not been proved by the respondent at all. The learned District Judge has not looked at the facts in proper legal focus. As has been pointed out by Justice Beaman in Bai Bhicaiji v. Perojshaw Jivanji Kerawalla, XVII Bom.L.R. 1040, a legal nuisance is rather an evasive shifting and intangible thing hard to be pinned down by a verbal definition, it must always be conditioned by time, place and circumstances. It has been further pointed out by Justice Beaman that in estimating a nuisance complained of, the Court must have regard to the station in life of the plaintiff, and to the locality and the nature of the nuisance complained of. These factors have not been borne in mind at all by the learned District Judge while they had been constantly placed before himself by the learned trial Judge. In my opinion, there is no basis for returning a finding of legal nuisance as mentioned in section 13(1)(c) of the Bombay Rent Act.
15. Mr. Gumaste, however, has mentioned that having regard to the fact that a grievance has now been made by the respondent regarding the use of the open space and the shed thereupon for the purpose of tethering cattle, the petitioner is removing the shed and will not make use, which was originally a permissible use, of the space for tethering cattle or for stocking fodder. This statement made by Mr. Gumaste, however, should not be interpreted to mean that the respondent or any of its members or office bearers has any right to obstruct the petitioner from using the open space for going to the demisted premises.
16. The decree passed by the learned District Judge, therefore, will have to be set aside. After noticing the observations made by the learned District Judge himself relating to the conduct of the respondent and its office bearers, in my opinion, the respondent must be made to pay the costs of the petitioner in all the courts.
17. In the result, this petition is allowed. The decree passed by the learned District Judge of Jalgaon in Civil Appeal No. 240 of 1974 is set aside and the decree of the learned 2nd Joint Civil Judge (Junior Division) Jalgaon, in Civil Suit No. 141 of 1969 is restored.
18. The respondent shall pay the costs of the petitioner in both the courts below as well as in this Court.