MISRA, J. - (1.) A decree of eviction has been passed against the appellant by the Addl. District Judge No. 6, Jaipur City, Jaipur after a finding was recorded by the trial court to the effect that the appellant committed default in payment of rent and also committed nuisance within the meaning of Section 13 (1) (d) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as `act' ). Hence the suit which was filed by the plaintiff-respondent against the defendant-appellant was decreed. In addition the defendant-appellant was also held liable to pay at the rate of Rs. 100/-per month for using the lawn of the building since the said lawn was held not to have been let out to the defendant-appellant by the plaintiff-respondent. A first appeal under Section 96 of the Code of Civil Procedure was thereafter preferred by the defendant-appellant before a learned Single Judge of this Court who was pleased to dismiss the appeal after scrutinising the evidence on the issue of nuisance and thus upheld the judgment and decree passed by the trial court. This special appeal has now been preferred by the appellant under Section 18 of the Rajasthan High Court Ordinance.
(2.) LEARNED counsel for the appellant challenging the judgment and decree of the court below has submitted that the evidence led by the plaintiff-respondent in order to prove the factum of nuisance is wholly unreliable and is not fit to be believed and hence the finding arrived at by the courts below is fit to be struck down as invalid. According to the learned counsel the learned Single Judge has erred in accepting the oral evidence of the witnesses in support of the case of the plaintiff and the finding of fact arrived at by the learned Single Judge while hearing the first appeal is vitiated on account of non-appreciation of the evidence. Thus in substance it has been submitted that the factum of nuisance which is a ground of eviction provided under Section 13 (1) (d) of the Act is fit to be struck down as invalid and the decree of eviction on this ground is not fit to be sustained. It has further been contended that the decree for payment of Rs. 100/-per month for using the lawn which according to the plaintiff-respondent was not in the tenancy of the appellant is also erroneous as the lawn was jointly used by all the tenants as also the landlord-respondent. The arguments have been advanced to the effect that the tenant-appellant cannot be held guilty of nuisance and in support of this submission reliance has been placed on several judgments in order to reinforce the submission that the defendant-appellant cannot be held guilty of committing nuisance. Counsel for the plaintiff-respondent on the contrary has submitted that the finding of fact arrived at by the two courts below and specially by a court having decided first appeal under Section 96 of the CPC should not be disturbed while hearing a special appeal and in support of this contention he has also relied on 1996 (1)WLC, 535 (1), 1992 (3)WLC 50 (2) and 1996 (1) WLC Having perused the judgment and order of the court below and on hearing the counsel for the respective parties, we have noticed that the courts below have meticulously examined the evidence while recording a finding that the tenant-respondent is guilty of committing nuisance and it is difficult to accept the contention raised on behalf of the appellant that the finding has been recorded against the weight of evidence. At this stage, we also deem it appropriate to record that had it been a regular second appeal under Section 100 of the CPC it would not have been open for the appellant to take us to the scrutiny of the evidence led by the parties but since this appeal has been filed under Section 18 of the High Court Ordinance and some judgments had also been cited in support of the contention that at the stage of the Special Appeal under the Rajasthan High Court Ordinance the courts can interfere with the facts as also the question of law, we allowed the counsel for the parties to point out if the finding is perverse but we have noticed that the plaintiff-respondent have been able to prove by leading evidence discussed in the impugned judgments and orders that 70 year old mother of the plaintiff-landlord has been living alone in the portion of the building which has not been let out to the appellant and the defendant-appellant has been held to be harrasing the old lady in various ways which although has been refuted by the defendant-appellant, the courts below have recorded a finding that the defendant-appellant is guilty of committing nuisance. We do not deem it appropriate to re-appreciate and record the entire evidence in this regard at the stage of special appeal, since it has already been discussed in the orders of the courts below and on perusal of the same we are satisfied that the finding to the effect that the tenant appellant is guilty of committing nuisance within the meaning of Section 13 (1) (d) of the Act cannot be said to be suffering from any infirmity so as to interfere with the decree of eviction. The appeal of the appellant, therefore, fails on this count as the findings of fact recorded against him cannot be said to be perverse. The question, however, remains as to whether the judgment and decree of the courts below to the effect that the defendant-appellant is liable to pay Rs. 100/-per month for use of the lawn can be said to be based on any evidence as it appears that the lawn has been used by all and has not remained in exclusive possession of the defendant-appellant. It can be noticed from the judgment and orders of the courts below that although the defendant-appellant has not been able to prove that the lawn was let out to him yet plaintiff-respondent also has not been able to prove her case that the lawn was exclusively used by the tenant so as to pass a decree in favour of the landlord directing the defendant/appellant to pay Rs. 100/-per month by way of compensation. The evidence on record discloses that the lawn was in common use of the occupants of the building and was not used exclusively by the defendant-appellant. Hence we deem it appropriate to set aside the decree in so far as the payment of Rs. 100/-per month by way of cost for use of the lawn is concerned, but in so far as the decree of eviction is concerned, the same requires, no interference. The appeal thus stands dismissed at the admission stage subject to the aforesaid modification of the impugned order and decree. . ;