RABARI PRABHAT HARJI Vs. PATEL CHANDULAL TRIKAMLAL

JUDGEMENT

(1.) Whether a tenant who has encroached upon adjacent land belonging to the owner in contravention of a term in the rentnote can be said to have committed a breach of a term of tenancy to entitle the landlord to seek an eviction decree under sec. 12(1) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter called the Act) is the short question which arises for my determination in the present two Revision Applications preferred by the tenants of the respective parcels of land. The opponents are the owners of a large piece of land bearing Survey No. 460/A situate in Asarwa Ahmedabad. They appear to have given on lease an area admeasuring 20 x 20 to Rabari Prabhat Harji (the petitioner in Civil Revision Application No. 764 of 1978 on a monthly rent of Rs. 16.50 ps. with effect from 1st April 1964. Another piece of land admeasuring about 30 x 60 out of the same Survey Number is stated to have been given on rent with effect from 1st April 1964 to Rabari Malji Raimal since deceased (the original petitioner of Civil Revision Application No. 765 of 1978) on a monthly rent of Rs. 40 Both the rent notes executed by the aforesaid tenants contain a term which translated into English reads as under:-

(2.) In Revision Application No. 764 of 1978 preferred by the tenant Prabhat Hariji the only question which arises for my consideration is whether on the facts and in the circumstances of the present case the decree in ejectment passed against the tenant on the ground of breach of a term of tenancy can be sustained. The lower appellate Court has come to the conclusion that the owners are not entitled to eviction under sec. 12(3)(b) of the Act and that finding has not been assailed by the owners. In the second Revision Application No. 765 of 1978 preferred by the legal representatives of the deceased tenant Malji Raimal the decree in ejectment has been passed on both the grounds of arrears of rent and breach of term of tenancy. So the first question which I must consider is whether the tenants by encroaching upon the adjacent land belonging to the owners committed a breach of the condition contained in the rentnote and whether such breach amounts to a breach of the term of tenancy to entitle the owners to seek ejectment under sec. 12 (1) of the Act.

(3.) Sec. 12(1) provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the amount of standard rent and permitted increases if any and observes and performs the other conditions of tenancy in so far as they are consistent with the provisions of the Act. So far as the latter part of the aforesaid sub-section is concerned it enjoins upon the tenant to observe and perform the other conditions of the tenancy; albeit those conditions must be consistent with the provisions of the Act. The owners contend that the tenants had by the execution of the respective rent-notes undertaken not to encroach upon the land adjacent to the demised land belonging to the owners. So far as the factual aspect is concerned the report of the Commissioner tendered in evidence in both the suits clearly suggests that the tenants have encroached upon the adjacent land belonging to the owners and are making use thereof for the purpose of tethering cattle etc. Mr. J. C. Patel the learned advocate for the tenants did net attempt to dispute this factual aspect before me. It is therefore clear from the evidence on record that the term of the rentnote reproduced earlier has been contravened. The question then is whether such contravention amounts to a contravention of the condition of the tenancy within the meaning of sec. 12 (1) of the Act to entitle the owners to evict the tenants from the demised land ?