Shelat J. - (1.) This appeal together with Civil Appeal Nos. 881 to 887 of 1964 are by special leave and arise from eviction suits filed by the appellants against the respondent-tenants. All of them are directed against the common judgment and order passed by the High Court of Maharashtra allowing revision applications filed by the respondent-tenants under section 115 of the Code of Civil Procedure and dismissing the appellants' suits. As they involve common questions of fact and law, they were heard together and are disposed of by this judgment. As the facts in Civil Appeal No. 880 of 1964 are typical, we need set out only those facts it being unnecessary to go into the facts of the other appeals.
(2.) The facts leading to these appeals may briefly be noticed. By an agreement dated May 19, 1933, the Improvement Trust of the City of Bombay (the predecessor-in-title of the Municipal Corporation of Bombay) agreed to lease a plot of land situate at Matunga, Bombay and handed over possession thereof to the predecessors-in-title of the appellants. The said lessees thereupon built on the said plot a building known as 'Bhiwandiwala Building.' The building consists of a ground floor and two upper floors, the ground floor consisting of 17 shops with a projecting awning, constructed presumably as a shelter against rain and sun. By an indenture of lease dated January 29, 1936, the Municipal Corporation granted lease of the said plot together with the said building to the said lessees in perpetuity, determinable, however, on conditions as there in contained. Under clause (2) of the said lease, the lessees covenanted. 'not to use or permit to be used such portion of the land hereby demised as shall be for the time being unbulit upon for any purpose whatever other than as an open space .... and not to place or store or permit to be placed or stored upon the land for the time being unbulit upon or any part thereof any article or thing whatsoever which may interfere with the use of such an open space.'
(3.) Clause 13 authorised the Corporation to re-enter upon the said premises or any part thereof in the event of the lessees committing breach of the said conditions and covenants. In 1949, the appellants who had by then acquired the lease-hold rights in the said property filed eviction suits against the respondents on the ground that they had made encroachments in the said open space by putting up platforms for storing and exposing their wares for sale thereby committing breach of the said clause (2) and jeopardising the said least. The suits ended in a compromise dated August 28, 1950 upon the tenants agreeing and undertaking to remove the said encroachments and also undertaking not to make any encroachment and obstruction in future or keep any articles in the said open passage which would be objectionable to the Municipal Corporation and which would render the lessees open to the risk of being prosecuted or of the said lease being forfeited. It appears that notwithstanding the said compromise, the said encroachments were continued. For we find the Estate Agent of the Municipal Corporation complaining by his letter of November 15, 1952 that certain unauthorised encroachments continued to exist. These encroachments, inter alia, consisted of platforms projecting into the said open space in shops Nos. 1, 6, 7 and 8 and a milk shop. The said letter warned that "even though the said breaches may not have been committed by you but by your tenents, you are liable for the same under the terms and conditions of the leave and action will be taken against you only.";