NATHUBHAI VAMALIDAS Vs. RAMANLAL PENUBHAI

JUDGEMENT

(1.) This is a revision petition filed by the original plaintiffs against the judgment and decree passed by the learned Extra Assistant Judge Surat in Regular Civil Appeal No. 10 of 1969 dismissing the appeal with costs and confirming the decree of the trial Court in Regular Civil Suit No. 8 of 1966 dismissing the plaintiffs suit for possession dated 30 1968.

(2.) Both the Courts below have recorded a concurrent finding that the defendants have committed a breach of the terms of the tenancy. The trial Court further found that on account of the acceptance of the rent after coming to know of the breach of the terms of the tenancy the plaintiffs have waived the breach. Furthermore notice as contemplated by sec. 114-A of the Transfer of Property Act for remedying the breach or repairing the breach having not been given the plaintiffs were not entitled to get a decree for possession on the ground of a breach of the terms of the tenancy. It was further found by that Court that the plaintiffs were even estopped from claiming such a relief of possession on that ground.

(3.) The appellate Court in the appeal reached the conclusion that there was no waiver of such breach of the term of the tenancy. Further more the breach being a continuing breach waiver would be only for the past breach. The appellate Court recorded a finding that the landlord came to know about the breach sometime in February or March 1965 Rent was accepted thereafter upto August. 1965. Thereafter also the breach is continued. There is therefore no waiver of future breach. But according to the learned appellate Judge provisions of the Transfer of Property Act were not abrogated by the provisions of the Act. It was therefore incumbent upon the landlords to give notice as contemplated by sec. 114-A of the Transfer of Property Act. That having been admittedly not given plaintiffs were not entitled to possession. The learned appellate Judge in para 20 of his judgment in terms observes: