RABARI PRABHAT HARJI Vs. PATEL CHANDULAL TRIKAMLAL
HIGH COURT OF GUJARAT
RABARI PRABHAT HARJI
PATEL CHANDULAL TRIKAMLAL
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(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:-
"I have measured the land. I will not use the land lying beyond the said limits. I will put up a wirefencing demarcating the demised land."
The owners contend that both the tenants in contravention of the aforesaid term of tenancy encroached upon the adjacent land belonging to the owners sometime before the institution of the suits in the year 1968. On learning about the said encroachment the owners addressed a notice terminating the tenancy of the aforesaid two tenants on 22nd January 1968 Admittedly both the tenants received the notice and sent replies thereto denying the allegations made in the notices. Thereupon the owners instituted two separate Suits Nos. 1537 and 1538 of 1968 claiming eviction inter alia on two grounds namely:- (1) the tenant was in arrears of rent and was not ready and willing to pay the standard rent in respect of the demised land; and (2) the tenant had committed a breach of the term of tenancy and was therefore liable to be evicted by virtue of sec. 12(1) of the Act. The tenants entered an appearance and contested the suits denying both the allegations made by the owners. The learned trial Judge came to the conclusion that the two tenants had committed a breach of a term of the tenancy and were also not ready and willing to pay the standard rent in respect of the demised land. The learned trial Judge. therefore awarded a decree to the owners whereunder the tenants were directed to vacate and deliver possession of the demised land on or before 1 March 1973. Against the said judgment and decree of the trial Court the two tenants preferred separate appeals being Appeals Nos. 106 and 107 of 1973 before the Appellate Bench of the Court of Small Causes at Ahmedabad. Both the appeals were heard by the same Bench and were disposed of on 27th January 1978. In the case of tenant Prabhat Harji the appellate Court came to the conclusion that he was not a tenant in arrears and hence the learned trial Judge was not justified in awarding a decree under sec. 12(3)(b) of the Act. The Appellate Bench however took the view that the tenant had committed a breach of a term of tenancy and hence the decree passed under sec. 12(1) of the Act must be sustained. Accordingly it directed the tenant Prabhat Harji to deliver possession on or before 1st April 1978. So far as the appeal by the legal representatives of deceased tenant Malji Raimal is concerned the Court upheld the decree on both the counts and gave time to the appellants to vacate and deliver possession of the demised land to the owner on or before 1st April 1978. The tenants being aggrieved by the decree in ejectment passed by the Courts below have preferred the present Revision Applications.
(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 ?;
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