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A.J. Massey (deceased) through legal representative Jerome Xavier Massey v/s Sumer Singh

    Civil Second Appeal No. 38 of 1988

    Decided On, 19 August 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE MOHAMMAD RAFIQ

    For the Appellant: Manu Bhargava, Advocate. For the Respondent: N.K. Maloo, Senior Advocate with V.K. Tamoliya, Counsel.



Judgment Text

1. This second appeal has been filed by plaintiff against judgment and decree passed by District Judge, Ajmer, dated 07.10.1987, who thereby upheld judgment and decree passed by learned Munsiff, Ajmer City, Ajmer, dated 18.01.1975.

2. Plaintiff filed a suit for eviction against defendant in court of learned Munsiff, Ajmer City (East), Ajmer, for ejectment and recovery of rent on the ground of nuisance and damage to suit-premise and also for recovery of arrears of rent. Learned Munsiff decreed the suit with regard to recovery of arrears of rent of Rs.450/- and rate of rent was quantified at Rs.450/-, however, dismissed the suit for ejectment. Aggrieved thereby plaintiff filed an appeal before learned District Judge, which too was dismissed.

3. I have heard Shri Manu Bhargava, learned counsel for plaintiff-appellant and Shri N.K. Maloo, learned Senior Advocate assisted by Shri Vinod Kumar Tamoliya, for defendant-respondent.

4. Shri Manu Bhargava, appearing on behalf of appellant, argued that second appeal seeks to challenge judgment passed by learned courts below recording concurrent finding of nuisance and damages to suit-premises against the plaintiff. Ground on which eviction of defendant-tenant was sought by plaintiff-appellant in the suit was that though the premise in question was let out for residential purpose but the defendant and his other family members have created nuisance in the house by keeping and tethering large number of cows/she-buffaloes, which is otherwise a very small compound. Defendant made the house very dirty and unhygienic. Family members of defendant have stored fodder on roof of the house. They keep cows and she-buffaloes within the compound of let out premise. Apart from this, it was also asserted that septic-tank in the house has been damaged on account of their keeping cows, she-buffaloes etc. A common issue no.3 was framed for both, nuisance and damages, which has been concurrently decided against plaintiff by learned two courts below. Hence this second appeal on behalf of plaintiff.

5. This court, while admitting the appeal on 23.08.1989, framed following substantial questions of law for adjudication:-

"Whether keeping and tethering of cows and she-buffaloes by the respondent and stacking of fodder for them, in the facts and circumstances of the case, amounts to creation of nuisance by the defendant-respondent and if the defendant-respondent liable to ejectment from the demised premises on this ground."

6. Shri Manu Bhargava, learned counsel for appellant, has argued that learned courts below have failed to appreciate true meaning and import of word 'nuisance' despite clear evidence on record and admission of the witnesses of the defendant to the effect that there were 13 cattle viz., cows, she-buffaloes etc., and nuisance was created in the meaning of Section 13(1)(d) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The finding of the courts below thus suffers from gross perversity, that calls for interference even in second appeal within the scope of second appeal under Section 100 of the Code of Civil Procedure by this court. Learned counsel in this respect referred to statements of plaintiff's witnesses as al

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so defendants. He argued that PW-1 A.J. Massey, in his statement, stated he gave one room measuring 12'x14', another room measuring 10'x12', a small room measuring 8'x8' and half chowk to defendant-tenant on rent for residence. Defendant, however, started keeping cows and she-buffaloes therein which created lot of dirt and animal waste. His septic tank was also damaged. The fodder was stored on the roof of the house and goats were also kept on the roof. The house was let out for residence of the defendant and not for running a dairy farm. Tenant in the adjoining house for several times made complaints of the bad smell due to the waste of cows and she-buffaloes and goats etc. kept by the defendant. For some time in the beginning, plaintiff did not complain when only limited number of cattle were kept but when their number increased, he raised objection. Initially they brought only four cattle but when these number rose to 7-8, the plaintiff raised objection. PW-2 R.C. Massey, the neighbour of the plaintiff, who was also examined, stated that he resided 100 yard away from the house in question. The defendant used to run a dairy from the house. They had 5-6 cows and she-buffaloes owing to that reason lot of dirty is there. They used to store the fodder of the cattle on the roof of the house. PW-3 Bhanwarlal stated that he used to visit the house of the plaintiff on important occasions for taking photographs etc., and saw two cows and four she-buffaloes there. PW-4 Amarchand has also stated that due to the cows/she-buffaloes kept by the defendant in the house, lot of dirt was there. The defendant had 12-13 such animals. Defendant Sumer Singh, who has been examined as DW-1, has stated that when they initially came to reside in the house of the plaintiff as tenant, there were 3-4 cattle and they were having them for last 10-12 years. DW-2 Swaroop Singh has also stated about dirt but he has taken a precaution in stating that the defendant had hired a sweeper/harijan, which is not the fact because no sweeper/harijan has been produced in evidence. In his cross-examination, he stated that the defendant had six big cattle, namely, cows/she-buffaloes and 2-3 small cattle. DW-3 Daluram has also stated that fodder of the cattle was stored on the roof of the chhappar and the cattle were kept in the open chowk. It is wrongly stated that he accompanied defendant when the house was initially let out to him and it was agreed in his presence that the defendant would keep the animals.

7. Shri Manu Bhargava, learned counsel for the plaintiff-appellant, argued that initially the defendant kept 2-3 cows/she-buffaloes but in the course of time the number has arisen to more than 13. The defendant was running dairy farm in the midst of the city which was causing lot of nuisance and bad smell which has made the life of the plaintiff and all other neighbours like hell because animals produce the dung, they pass urine, their fodder that is served to them also smells. All these cumulatively creates bad scene which is horrible to the residents. DW-4, father of the defendant, has also stated that they had at least four cows, four she-buffaloes, three calves and two calves of buffaloes. The fodder was stored on the roof of chhappar. DW-5 Motilal has also admitted about lot of animals but he stated that the defendant had made all the arrangements of cleansing by hiring sweepers/harijans, which is not the fact. The house was given on rent for the purpose of residence and not for the purpose of running a diary. If the findings recorded by the learned trial court as well as appellate court are examined, it would be seen how illegally the suit of the plaintiff has been rejected. The trial court has recorded a finding that the open compound behind the house was part of the tenanted premise, which in fact the plaintiff never denied. His objection was about number of cows/she-buffaloes and other animals which has become the source of regular nuisance. The learned trial court rejected the objection because it has accepted the plea of the defendant that he had hired a sweeper/harijan to do the cleaning. The first appellate court though accepted the fact that defendant was keeping as many as 13 cattle-heads in the compound, but it has while relying on the definition of 'nuisance' given in Section 3(17) of the Rajasthan Municipalities Act, 1959, held that there are no proper pleadings in the plaint about keeping of cattle thereby rendering the compound in a dirty and unhygienic condition. What was nuisance and unhygienic condition of that part of the house which was occupied by the defendant would only constitute nuisance for the plaintiff, who resides in another part, has not been specifically pleaded. Whether unhygienic condition has created nuisance or foul smell or otherwise rendered the living completely miserable has neither been proved nor pleaded. It is on this kind of considerations the learned first appellate court has dismissed the appeal. The learned counsel has argued that what is the meaning of nuisance, is a fact which has been admitted too even by the learned first appellate court but yet surprisingly it has not upheld the plea of nuisance in spite of specific proof of keeping of more than 11 cattle in the compound of the house which admittedly was let out to the defendant for residential purpose. Law of pleadings in this manner cannot be misapplied. Basic pleadings were categorically made and all what has been required by the learned first appellate court are matters of evidence.

8. Shri Manu Bhargava, learned counsel for the appellant, in support of his arguments, relied on following decisions:- Milkmen Colony Vikas Samiti v. State of Rajasthan and Others (2007) 2 SCC 413, Raj Kumar v. Shanti Prasad, 2006 (1) DNJ (Raj.) 289, Niader Mal v. Ugar Sain Jain and Another, AIR 1966 Punjab 509, Bhanwar Lal and another v. Dhanraj, AIR 1973 Rajasthan 212, Prakash Chandra v. Bhajan Singh, 1997 (3) WLC (Raj.) 501, Lallu Narayan v. Ratan Chand Lunia, RLR 1989 (1) 475, Poosa Ram v. Madan Gopal, 2005 (5) WLC (Raj.) 559, Rai Chand Jain v. Miss Chandra Kanta Khosla, (1991) 1 SCC 422, Sree Swayam Prakash Ashramam and Another v. G. Anandavally Amma and Others, (2010) 2 SCC 689, Pushpabai v. A.S. Menon, 1959 (1) Andh. WR 363 and Manoharlal Mulwani v. Punjab State Cooperative Bank, 1984 (2) RCR 359 (P.& H.).

9. Shri N.K. Maloo, learned senior counsel for defendant-respondent, has argued that impugned judgment of courts below are perfectly just and valid. The question of nuisance having been decided against plaintiff by both the courts below concurrently and this being a concurrent finding of fact, is not open to interference by this court in scope of second appeal. Learned counsel argued that learned trial court found that no credible evidence was led by plaintiff to prove the nuisance. Immediate neighbours produced as witness like Amar Chand and Bhanwar Lal were in fact not immediate neighbours, therefore they did not have any personal knowledge. Evidence has proved that cow-shed was neat and clean and defendants had made proper arrangement for its cleaning. The plaintiff from beginning of tenancy allowed the defendants to keep animals in the open compound of the rented house. He was estopped from raising objection because this was allowed by him for last twelve years. Swaroop Singh, Daluram and Motilal by their statements have proved the fact that rented premise was clean and did not have any foul smell of urine and animal waste. Proper arrangements were made for cleaning of urine and dung. The first appellate court has also rightly dismissed the argument of the appellant regarding nuisance. The appellate court has rightly held that the plaintiff did not have any pleading of nuisance. All that the plaintiff has stated in Para 4 of the plaint that the cattle kept by the defendant have rendered the compound dirty and unhygienic. There was no specific pleading about nuisance to the plaintiff who was occupying other part of the house. This was not true that there was the insanity and unhygienic condition in that part of the house which was let out to the defendant or that it was causing nuisance to the plaintiff. Learned first appellate court held that the plaintiff had not even pleaded that whether and how alleged unhygienic condition created nuisance or foul smell or otherwise rendered the living of the plaintiff uncomfortable. No evidence to that effect has been produced. Learned counsel referred to para 4 of the plaint and argued that there was in fact no pleading of nuisance as has been rightly held by the learned first appellate court.

10. Shri N.K. Maloo, learned senior counsel for respondents, argued that at the time when the premise was originally let out to the defendant by the plaintiff, he did not object to keeping of cattle by defendant, which is a fact proved on record from the evidence adduced by defendant, and that the defendant for last about 10-12 years was keeping/tethering cows and she-buffaloes, which was never objected to by the plaintiff. It was argued that this matter has to be decided in the light of facts that existed at the time of filing of the suit in 1970 under perception that at that time keeping of few cows and she-buffaloes, was not considered to be a nuisance. However, present time perception of nuisance has completely changed. Learned counsel submits that issue of nuisance shall have to be decided on the basis of actual evidence and not on the basis of surmises and conjectures. Here in the present case, the manner in which nuisance was caused to the plaintiff has not been disclosed. Therefore mere tethering of cows and she-buffaloes cannot be taken as a nuisance. The evidence on the question of nuisance could not be read and relied since there was no pleading on the question of nuisance. Pleadings in para 4 of the plaint, as stated above, cannot be accepted proper pleadings on the question of nuisance.

11. Learned counsel, in support of his arguments, relied on following judgments:- (1999) SC 133, 1972 RLR 458, 1971 RLW 609, AIR 1978 Gujarat 72 and Sultan Singh v. State of Rajasthan, 1987 (2) RLR 505.

12. I have given my anxious consideration to rival submissions and perused the material on record.

13. The question of law on which this appeal was admitted was Whether keeping and tethering of cows and she-buffaloes by the respondent and stacking of fodder for them, in the facts and circumstances of the case, amounts to creation of nuisance by the defendant-respondent and if the defendant-respondent liable to ejectment from the demised premises on this ground?

14. What is the 'nuisance' has not been defined in the Act of 1950 but the learned first appellate court has for that purpose relied on the definition of 'nuisance' as given in Section 3(17) of the Rajasthan Municipalities Act, 1959, which defines 'nuisance' as follows:-

"(17) 'nuisance' includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or which is or may be dangerous to life or injurious to health or property."

15. A perusal of aforesaid definition would indicate that nuisance would amount to act or omission which causes or is likely to cause injury, danger annoyance or offence to the sense of sight, smell or hearing or which is or may be dangerous to life or injurious to health or property. Sufficient evidence has come on record on this aspect on the record and mostly by way of admission of the defendant and his father that the defendant was keeping large number of cows and she-buffaloes, goats and that he stacks fodder also on the roof of the house. Core issue that arises for consideration is whether despite tethering large number of animals and keeping the fodder on the roof of the house, defendant can get away by contending that there was no nuisance at all. If we go by definition of nuisance, supra, anything which causes injury, danger, annoyance or offence to the sense of sight, smell or hearing would be considered nuisance. Before however we analyze evidence and go to findings about nuisance or otherwise, as recorded by the courts below, this has to be found out whether there were pleadings of nuisance in the plaint so as to read the evidence in support of such pleadings. The plaintiff has in para 4 of the plaint pleaded as under:-

"4. That the defendant and his father and other family members also commit nuisance in the house by keeping cows and she-buffaloes. The compound is very small. The compound towards the west of the house has not been let out to the defendant.

The defendant and his family members illegally and without authority keeps cows, she-buffaloes on this small strip towards west of the house and keep the portion very dirty nd unhygienic. The portion is very small and some-time the defendant's parents and others keep 8 to 10 animals and so it is a nuisance.

That the defendant and his father and other family members stage fodder on the roof of the house without the consent and permission of the plaintiff. Besides being dirty and unhygienic it is also unsafe to keep fodder on the open roof."

16. In view of the aforesaid pleading in Para 4 of the plaint, which was denied by the defendant, a specific issue was framed by the trial court as issue no.3 - whether the defendant has committed nuisance and damage to the suit premise as stated in Para 4 and 5 of the plaint? In the present case, the second part of aforesaid issue regarding damage to the suit premise is not relevant for deciding this appeal, however issue with regard to nuisance was very much there. In the light of pleadings of the plaintiff and denial by the defendant and framing of specific issue in that behalf, the appellate court was not justified in holding that proper pleadings were lacking therefore, evidence led by the parties in that regard could not be read.

17. The learned courts below could not have in the face of pleadings in Para 4 of the plaint held that there was no pleadings to read the evidence led by the parties in support of their case. What has been insisted upon by the learned courts below in fact relates to particulars and details regarding proof of nuisance. Basic pleadings are very much there. Neighbour of the house Shri R.C. Messy has appeared as a witness to say that there was lot of nuisance. The plaintiff himself has stated that his neighbours used to complain to him about this. Plea of nuisance cannot be rejected just because more number of neighbours could not be produced in evidence. In view of that evidence, it cannot be said that it was case of no evidence. The view taken by the courts below that immediate neighbour should have been produced, and PW-2 R.C. Messy is a distant neighbour, cannot be accepted because evidence has proved that his house was only 150 square yards away from the disputed premise. The other witness PW-3 Bhanwarlal has also stated that he used to visit the house of the plaintiff on important occasions for taking photographs etc., and saw two cows and four she-buffaloes there.

18. On the question of pleadings, reference may usefully be made to judgment of the Supreme Court in Sree Swayam Prakash Ashramam and Another v. G. Anandavally Amma and Others, (2010) 2 SCC 689. The Supreme Court, on the question of easementary rights, held that grant of easement can be claimed even by implication as well. In that case also the argument was raised that there are no pleadings in the plaint about implied grant of easementary rights and no issue was framed. The Supreme Court held that since the parties fully understood their case and adduced evidence, the trial court and high court were justified in reaching to the conclusion that the plaintiff had acquired a right of easement in respect of pathway by way of implied grant. Interference in the findings of fact arrived at by both the courts below was declined. The Supreme Court noted the objection of the defendant that no implied grant was pleaded in the plaint. While brushing aside that objection, the Supreme Court held that trial Court was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. He several times made complaint to the plaintiff about bad smell due to waste of cows, she-buffaloes, goats etc. In the present case also the kind of pleadings that according to learned counsel for defendant-appellant, are required to be made are all matter of details which could be proved in evidence of basic foundation on the ground of nuisance within the meaning of Section 13(1)(d) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was already laid in para 4 of the plaint. Parties fully understood the issue involved in the case and led their evidence accordingly. Rest all what has been insisted upon by the learned first appellate court were matters of details which were only required to be proved by evidence.

19. The Punjab and Haryana High Court in Niader Mal v. Ugar Sain Jain and Another, AIR 1966 Punjab 509, dealing with the question as to what would amount to nuisance held that nuisance means, anything injurious or obnoxious to the community, or to the individual as a member of it, for which some legal remedy may be found. Anything done which unwarrantably affects the rights of the others, endangers life or health, give offence to the senses, violates the laws of decency or obstructs the comfortable and reasonable use of property, may amount to nuisance.

20. In Milkmen Colony Vikas Samiti v. State of Rajasthan and Others , (2007) 2 SCC 413, the Supreme Court, while upholding judgment of this Court whereunder relocation of the dairies outside city limit was ordered, held that citizens have right to hygienics and clean and safe urban environment. In Rafat Ali v. Sugni Bai and Others , (1999) 1 SCC 133, however, it was held by the Supreme Court that what is envisaged in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, is a private nuisance and not public nuisance which can be discerned from the words nuisance to the occupiers of the other portion in the same building or buildings in the neighbourhood. Perhaps in a wider sense, any industrial activity may create some sound while such activities are in operation.

21. In Daudbhai Imranali Motorwala v. Ajij Yakub Tamboli and Another , 1991 (2) R.C.R. 247, tethering cattle in courtyard by tenant was not held to be misuse or unauthorized use of premises as there was no complaint from neighbouring occupiers. In that case, plaintiff himself stated in evidence that there was no complaint from anybody about defendant's keeping the cows. That was a case based on admission of the plaintiff.

22. In Vinod Kumar Choudhari v. Resident Deputy Collector, Amravati , 1997 (1) RCR 166, the Bombay High Court held that no hard and fast rule can be laid down as what would constitute nuisance. Every case has to be considered on its own facts and circumstances.

23. The Supreme Court in Shantilal Kesharmal Gandhi v. Prabhakar Balkrishna Mahanubhav , (2007) 2 SCC 619, was dealing with case where decree of eviction was passed against tenant both on the ground of nuisance and non-user, in a suit filed under Section 13(1)(a), (c) and (k) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The allegation was that the premise was originally let out to the tenant for residential purpose but he had installed an industry therein. The trial court decreed the suit upholding both the arguments. Tenant was held responsible for causing nuisance by installing the machinery and by dumping of the products and the blocking of passage. The first appellate court upheld that judgment and decree, however, did not elaborately discuss the evidence. In the Supreme Court the argument was that the first appellate court has failed to appreciate the facts, which being the final court of fact, should have made proper examination. The Supreme Court held that on the conduct of tenant which has resulted in causing nuisance and annoyance to the adjoining or neighbouring occupiers of the main building of which the suit premises is a part, as recorded by the trial court, does not suffer from infirmity, therefore, there was no reason to interfere with the decree of eviction. Argument that the said finding has been recorded as the court accepted it to be a tenancy only for residential purpose whereas it was let out for residential as well as industrial purpose. Argument was rejected by holding that finding was based on effect of installation and working of machinery by the tenant, the blocking of a passage by putting up a tin sheet partition and the dumping of articles in the passage and in the open space in the premises. Effect of these acts are relevant considerations while entering a finding on nuisance. The explanation of the tenant that the goods did not belong to him but to his relatives, was also rejected.

24. The Supreme Court in Narpatchand A. Bhandari v. Shantilal Mool Shankar Jani and Another, (1993) 3 SCC 351, while dealing with a case arising out of Section 13(1)(c) of the Act supra, held that there are no statutory definitions of 'nuisance' or 'annoyance' under the said Act, which constitute a ground for recovery of possession by landlord of a premises in the occupation of a tenant. 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. Further, when the particular acts of the defendant or persons residing with him in the flats of a storeyed building, said to have caused nuisance or annoyance to the occupiers of adjoining or neighbouring occupiers of flats, it cannot be said that they were not clear acts of nuisance or annoyance envisaged under section 13(1) (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 tenements of the storeyed building, and the nature of living to which they were accustomed.

25. In view of the law so laid down by the Supreme Court, a court has to take a realistic view of the matter to judge whether or not on the basis of material and evidence available on record, it can be deduced that the act of the tenant amounted to nuisance. In present case, the evidence has come on record that the defendant/tenant was tethering some 12-13 cows/she-buffaloes and additionally had certain goats which obviously were creating lot of dirt by way of dung and urine etc. Although the defendant/tenant has sought to justify his act by producing some evidence to the effect that he had hired sweeper to get the premise regularly cleaned up but considering the fact that the premise in question was let out to him for residential purpose, even if the landlord initially did not object to his keeping 2-3 cows/she-buffaloes, does mean that he would be estopped from maintaining eviction suit against him on the ground of nuisance despite his having started tethering as many as 13 cows/she-buffaloes with additional nuisance of keeping goats and stacking of fodder on the roof of the house. Sufficient evidence has been produced by the plaintiff to substantiate this plea that this indeed amounted to nuisance not only to the plaintiff himself, who was living in other part of the same house but also to the neighbours. On this aspect the findings are therefore erroneous and perverse and despite this finding being concurrent, this court in exercise of its powers under Section 100 of the CPC would be justified in interfering therewith because such finding was perverse, which no person of ordinary prudence could on given facts arrive. It cannot be by no stretch of imagination argued that when a landlord let out a premise for residential purpose and even when the tenant start tethering as many as 13 cows/she-buffaloes, yet it can be said that this would not amount to nuisance because question of nuisance should be approached from the perception that was held not now but three decades ago when the premise in question was let out to the tenant.

26. The Supreme Court in Maria Colaco and Another v. Alba Flora Herminda D'souza, (2008) 5 SCC 268, held that normally in a second appeal, the High Court should not interfere on the question of fact but if on scrutiny it is found that findings recorded by the first appellate court are totally perverse, then certainly the High Court can interfere in the matter as it constitutes a question of law. In a recent judgment in Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740, again the Supreme Court reiterated the same law that if the High Court concludes that findings of fact recorded by courts below are perverse being based on no evidence or irrelevant material, the appeal can be entertained and it is permissible for the High Court to re-appreciate the evidence.

27. In the present case, the findings have been recorded by the learned courts below against weight of evidence. It does not appeal to the reason why tethering of 13 animals and stacking fodder on the roof of the house would not amount to nuisance. The statement of various plaintiff's witnesses would clearly show that when plaintiff had initially let out the house in question to defendant on rent, there was no crowed in the area. The plaintiff has stated that the defendants used to tether cows and buffaloes in the compound of his house. In the cross-examination, he has stated that there were six animals. PW-2 R.C. Massey stated that he resided 100 yard away from the house in question. The defendant used to run a dairy from the house. He had 5-6 cows and she-buffaloes owing to that reason lot of dirt is there. They used to store the fodder of the cattle on the roof of the house. PW-3 Bhanwarlal stated that he used to visit the house of the plaintiff on important occasions for taking photographs etc., and saw two cows and four she-buffaloes there. PW-4 Amarchand has also stated that due to cows/she-buffaloes kept by the defendant in the house, lot of dirt was there. The defendant had 12-13 such animals. Even the defendant's witnesses have admitted this fact. DW-1 Sumer Singh has stated that initially when he took the house on rent, he was having certain animals there. The plaintiff did not object thereto and he never objected for about ten-twelve years. DW-2 Swaroop Singh has stated in the cross-examination that at the time of taking the house on rent, the defendant informed the plaintiff that he would keep certain animals in the rented compound. This witness even admitted that defendant had six cows and she-buffaloes, and 2-3 small animals. DW-5 Motilal, in the cross-examination, has stated that the defendant was keeping the animals for last fifteen years.

28. In the light of aforesaid discussion, it cannot be said that there was no nuisance or that it did not constitute nuisance applying the standard of nuisance as defined in Section 3(17) of the Act, which on the principle or analogy can be referred to and rather relevant to examine this question, there being no other definition of 'nuisance' in the Act of 1950.

29. According to aforesaid definition, the nuisance includes any act or omission which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or which is or may be dangerous to life or injurious to health or property, and no finding could be recorded contrary to it. In view of pleadings made in Para 4 of the plaint and the evidence available on record, it cannot be held that specific pleading of nuisance was not raised by the plaintiff. Anything which is causing annoyance or offence to the sense of sight, smell or hearing, has rightly been defined to mean a nuisance. The learned trial court as also the appellate court have in their judgments given the reasoning that it was not a case of nuisance. However, in my view, nuisance was fully proved. The findings recorded by the learned courts below that despite there being so large number of cows/she-buffaloes and stacking of fodder on the roof of the house, nuisance cannot be said to have been caused to the plaintiff because it has not been so specifically pleaded, in my considered view, is wholly perverse and erroneous finding.

30. In view of evidence available in this case, plaintiff must be held to have proved the ground of nuisance. Findings of both the courts below thus suffer from perversity in the sense that no reasonable person of ordinary prudence on the basis of available material in this case could have come to the conclusion that there was no nuisance. Such a finding, despite being concurrent, cannot be sustained in law because it suffers from perversity.

31. The appeal is accordingly allowed and the suit filed by the plaintiff is decreed.

Appeal allowed.
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