[Cites 11, Cited by 0]
Gujarat High Court
Shantilal Ramlal Marwadi (Kothari) vs Prahladbhai Vinubhai Panchal, ... on 4 May, 2026
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Reserved On : 23/04/2026
Pronounced On : 04/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 650 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
No
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SHANTILAL RAMLAL MARWADI (KOTHARI)
Versus
PRAHLADBHAI VINUBHAI PANCHAL, ADMINISTRATOR OF PROPERTY
OF SAVITABEN VINUBHAI PANCHAL
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Appearance:
MR PREMAL R JOSHI(1327) for the Applicant(s) No. 1
MR KIRAN S PANCHAL(1187) for the Opponent(s) No. 1
MR PRAVIN P PANCHAL(2059) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. This Revision Application filed under Section 29 of the
Gujarat Rents, Hotels and Lodging House Rates Control Act,
1947 ('the Rent Act', for short) challenging the judgment and
decree dated 03.10.2025 drawn by the Appellate Bench No.2
of Small Causes Court, Ahmedabad ('the Appellate Court', for
short) in Civil Appeal No.54 of 2014 whereby the Civil Appeal
was allowed and the judgment and decree dated 20.03.2014
passed by the learned Trial Court i.e. Small Cause Court No.7,
Ahmedabad in H.R.P. Suit No.832 of 2009 was set aside and
the tenant was directed to handover peaceful and vacant
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possession of the demise premises to the appellant within a
period of two months.
2. The suit has been instituted by the plaintiff - landlord
and the defendant is tenant. For the sake of convenience, the
parties herein are referred to as per their original status as
that of before the trial Court.
3. The facts, in brief, are as under:
3.1 The commercial property bearing Municipal Census
No.328/7, Sub-Plot No.98-20 Final Plot No.330, Survey
No.298, Ambica Industrial Estate, Opp. Dariakhan Ghummat,
Ahmedabad ('the demise premises', for short) belongs to and
owned by landlord, had been rented to the tenant at monthly
rent of Rs.300/- plus municipal taxes and other taxes,
electricity charges for the use of commercial purpose since
01.04.1972 by executing a rent-note.
3.2 According to the landlord, as per the terms and
conditions agreed by and between the parties, of the rent-
note, tenant was prevented rather restricted to use the
demise premises only for commercial purpose. He was further
restrained to transfer, assign or sublet the demise premises in
any manner. The tenant was further restricted to use adjacent
land for their ingress and egress between 10:00 p.m. to 05:00
a.m. as the said land holds right of way connected to other
immovable property belonging to the plaintiff for personal
use. It was agreed between landlord and tenant that entrance
gate situated on western side of the demise premises will not
be used by the tenant and would be kept close throughout.
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The tenant was further restricted to use the margin open land
and further restrained to erect any permanent structure on
the demise premises without written permission of the
landlord. It is, in these background, landlord put a case that
tenant has not only made encroachment on open land which is
existed in margin but also constructed permanent structure
and violated terms and conditions of the rent note; also
damaged property not rented to the defendant - tenant. It is
also contended in the plaint that tenant had constructed
shade in open margin land which the tenant was permitted for
ingress and egress, which is of permanent in nature and
thereby encroached upon the open land and breached the
terms and conditions of the rent note.
3.3 With the background of the aforesaid facts, the plaintiff
had instituted HRP Suit No.832 of 2009 seeking eviction of
the tenant from the demise premises.
3.4 The said suit was seriously contested by the defendant -
tenant raising multiple contentions having denied all
allegations levelled against him and further contended that
for superficial reasons, since landlord intended to remove
tenant from demise premises, has filed the false suit.
However, during the recording of the statement, tenant
accepted the execution of the rent-note and further contended
that he has deposited arrears of rent.
3.5 The learned trial Court, on the basis of the rival
pleadings, was pleased to frame the issues and permitted the
parties to lead evidence and ultimately, after analysing the
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evidence, dismissed the suit on the ground that though the
landlord has successfully proved that defendant encroached
upon land other than rented land, it may not be treated
breach of conditions of the rent note or tenancy. On the
contrary, conduct of the tenant would rather personal
obligation of the tenant and cannot be said to be breach of
tenancy which could fall under Section 13(i)(a) of the Rent Act
read with Section 108 (0) of the Transfer of Property Act,
1882. This judgment and decree passed by the learned trial
Court carried in appeal before the appellate Bench of Small
Causes Court. The appellate Court, by judgment and decree,
reversed the findings and passed the judgment and decree in
favour of landlord on the reason and belief that the
encroachment on the other part of the landlord's property is
in violation of terms and conditions of the rent note and it
attracts provisions of Section 13(i)(a) of the Rent Act and
Section 108(o) of the Transfer of Property Act, 1882.
3.6 Being aggrieved, the tenant has filed the present appeal.
4. I have heard learned advocate Mr.Premal Joshi for the
appellant - tenant and learned advocate Mr.Kiran Panchal,
appearing for the respondent - landlord.
4.1 It is firstly contended by learned advocates of both the
sides that impugned judgment and decree is already executed
and the tenanted premises or demise premises since was
locked, its possession has been handed over and taken by the
landlord. It is in this backdrop, learned advocate Mr.Joshi
criticizing the impugned judgment and decree passed by the
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learned appellate Court would submit that learned appellate
Court failed to notice that the encroachment on the other part
of the property belongs to and owned by the landlord would
not fall within the definition of 'breach of terms of the
tenancy' and per se would not attract the misuse of Section
108 (o) of the Transfer of Property Act, 1882. He would refer
to the judgment of this Court rendered in Deviprasad Vrajlal
Kachhiya vs. Chhotalal Narottamdas Panchal & Anr. reported
in 1993 (2) GLR 1703 and submitted that in identical
situation, the coordinate Bench held that encroachment by the
tenant, on an open space, which is adjacent to demise
premises and not forming the part of the rented premises
could not be said to be, in any case, a breach of the terms and
conditions of the tenancy.
4.2 He would further submit that even if such covenant is
made in the rent-note by the tenant and it has been breached,
such breach is a breach of personal obligation and it cannot
be equated with the breach of conditions of tenancy. He would
further submit that encroachment by the tenant upon adjacent
land belonging to the owner at the best can be said to be an
act of trespass committed by the tenant simplicitor and not
breach of covenant or even breach of trust or statutory terms
of tenancy and, therefore, he would submit that learned
appellate Court committed serious error in reaching to the
conclusion that the encroachment by the tenant on the open
space belongs to the landlord is breach of tenancy. Learned
advocate Mr.Joshi, at the end, would submit that this Revision
Application, may therefore, require consideration.
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4.3 Learned advocate Mr.Joshi would further submit that
learned appellate Court failed to appreciate legal provisions
while quashing and setting aside well reasoned judgment of
the trial Court. Mainly, upon above submissions, he would
submit to allow the present revision application to quash and
set aside the judgment and decree of the learned appellate
Court and to allow the appellant to resume possession of the
demise premises.
5.1 As against aforesaid submission, learned advocate
Mr.Panchal appearing for the landlord would submit that if
tenancy is without any terms and condition in form of written
rent note, the submission made by learned advocate Mr.Joshi
could sustain. He would submit that in the present case
admittedly the rent note has been executed with terms and
conditions whereby the condition no.7 abide the tenant not to
use any other part of the premises belongs to and owned by
the landlord. He would further submit that trial Court framed
issues at Exh.12. Amongst them, Issue No.4 was answered in
affirmative against the tenant whereby plaintiff has manifestly
proved that defendant has encroached upon and constructed
shed on adjacent space to the demise premises.
5.2 Mr.Panchal, learned advocate would submit that findings
arrived at by the learned trial Court regarding Issue No.4 has
not been challenged by tenant by filing cross-objection in the
appeal filed by the landlord or by the separate appeal and,
therefore, such findings attained finality. Now in fact
situation, Appellate Court decided that since tenant has
breached the terms and conditions of the rent-note, it attracts
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Section 13(i)(a) of the Rent Act read with Section 108(O) of
the Transfer of Property Act, 1882. He would further submit
that there is a clear breach of terms and conditions of the rent
note and if in defiance of the terms and conditions tenant has
encroached upon landlord's property it would not remain
mere personal obligation of the tenant but equally it attracts
breach of terms and conditions of the rent note. Therefore, he
would submit that learned appellate Court has rightly
observed so and passed the decree in favour of landlord which
does not require any interference.
5.3 Upon above submissions, learned advocate Mr.Panchal
would submit to dismiss this revision application.
6.1 Having heard learned advocates for both the sides and
having gone through the records and proceedings, at the
outset, let me observe that the scope of revision under Section
29(2) of the Rent Act is little wider than the scope of revision
under Section 115 of the Code of Civil Procedure, 1908. Yet it
is not so larger to sit as an appellate Court. It has put access
for limited purpose with a view to satisfy that it has
challenged in accordance with law. The Hon'ble Supreme
Court in the case of Patel Valmik Himatlal vs. Patel Mohanlal
Muljibhai (Dead) Through Lrs. reported in 1998 (7) SCC 383
examined the ambit and scope of revision under Section 29 of
the Rent Act. Paras:5 and 6 of the said decision read as under:
"5. The ambit and scope of the said section came up for
consideration before this Court in Helper Girdharbhai V/
s. Saiyed Mohamad Mirasaheb Kadri and Ors. (JT 1987 (2)
SC 599) and after referring to a catena of authorities,
Sabyasachi Mukharji, J. drew a distinction between the
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appellate and the revisional jurisdictions of the courts and
opined that the distinction was a real one. It was held that
the right to appeal carries with it the right of rehearing
both on questions of law and fact, unless the statute
conferring the right to appeal itself limits the rehearing in
some way, while the power to hear a revision is generally
given to a particular case is decided according to law. The
Bench opined that although the High Court had wider
powers than that which could be exercised under Sec.
115 of the Code of Civil Procedure, yet its revisional
jurisdiction could only be exercised for a limited purpose
with a view to satisfying itself that the decision under
challenge before it is according to law. The High Court
cannot substitute its own findings on a question of fact for
the findings recorded by the courts below on reappraisal
of evidence. Did the High Court exceed its jurisdiction.
6. The powers under Sec. 29(2) are revisional powers with
which the High Court is clothed. It empowers the- High
Court to correct errors which may make the decision
contrary to law and which errors go to the root of the
decision hut it does not vest the High Court with the
power to rehear the matter and reappreciate the
evidence. The mere fact that a different view is possible
on reappreciation of evidence cannot be a ground for
exercise of the revisional jurisdiction."
6.2 The Coordinate Bench of this Court also in case of
Deviprasad Vrajlal Kachhiya vs. Chhotalal Narottamdas
Panchal & Anr. reported in 1993 (2) GLR 1703, the
judgment upon which appellant relied on also succinctly
observed about the scope of revision in para:6, which reads as
under:
"6. At this stage, it may be noted that the jurisdictional
sweep of a revisional Court under Sec. 29(2) of the
Bombay Rent Act, though little wider than Sec. 115 of the
Code of Civil Procedure, is still circumscribed to
correcting the impugned decision, which is not in
accordance with law. Thus, a decision in an appeal of a
District Judge can be revised under Sec. 29(2), by this
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Court, provided this Court is convinced that such &
decision given in an appeal was not according to law. This
Court, therefore, as perverse or illegal. Bearing in mind
the limited scope of the revisional cannot interfere with
the findings of fact which cannot be characterised powers
under Sec. 29(2) of the Bombay Rent Act, the merits of
thin revision are required to be examined."
6.3 It is in this background as well as considering the fact
that the judgment and decree impugned in the matter is
already executed and the possession of the demise premises
has been handed over to the landlord, let me examine whether
learned appellate Court has committed any error of law in
reversing the judgment of trial Court and passing eviction
decree.
6.4 Learned Small Causes Court, upon rival pleadings, fixed
the following issues at Exh.12.
"1 Whether plaintiff proves that defendant is a monthly
enant of the suit premises at the rate of Rs.300/- with
municipal tax and other charges?
2 Whether plaintiff proves that defendant has executed a
rent note and he is entitled to obey terms and conditions
of it?
3 Whether plaintiff proves that defendant has no right to
use western side entrance of the suit premises?
4 Whether plaintiff proves that defendant has made
encroachment and constructed shade in open land
adjoining the suit premises?
5 Whether plaintiff proves that defendant has made
permanent construction and changed identity of the suit
premises?
6 Whether plaintiff is entitled for the reliefs as
prayed in para(10) of the plaint?"
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6.5 After permitting both the parties to lead evidence,
learned Small Causes Court answered Issue Nos.1, 2, 3 and 4
in "affirmative" and Issue Nos.5 and 6 in "negative" and
dismissed the suit of the plaintiff. Amongst the aforesaid
issues, in Issue No.4, Small Causes Court believed that the
plaintiff - landlord has successfully proved that defendant has
made encroachment and constructed shed in open land
adjoining the suit premises. Paras:8 and 9 of the judgment are
relevant by which learned Small Causes Court has also
believed that the tenant has encroached upon open space
belonging to the landlord and carried out construction of the
shed thereunder, which read thus:
"8 The plaintiff's case is that as per terms no.13 of
rent note, the defendant has to closed door of western
side and he has to put an entrance or door on eastern side
of the suit premises. The plaintiff has also deposed that
the defendant has no right to use western side door of the
suit premises. Despite that, the defendant has made door
on western side of the suit premises. The defendant has
also made encroachment on open land of the western side
of the suit premises. The defendant has made
encroachment on adjoining land of the suit premises. The
defendant Hav constructed shade in open land. The
plaintiff has relied upon report and map of Court
Commissioner which was carried out in H.R.P.Suit No.
2373 of 2008 vide Exh. 44. On perusing Court
Commissioner report and map exh.44, the Court
Commissioner has noted that on the western side of the
suit premises, the defendant has put up a door and on the
adjoining land, on western side of the suit premises, the
defendant has made construction c. shade. The Court
Commissioner has also noted about structure of the shade.
The Court Commissioner has also noted that in shade,
machinery of paper printing are lying. The plaintiff has
also produced photographs of the suit premises. During
cross examination of the defendant, photographs are
shown to the defendant. The defendant has admitted that
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said photographs are belonging to the suit premises. On
perusal of the photographs, the defendant has made big
gap on the wall of western side of the suit premises.
9. Against the said allegations, the defendant's case is
that adjoining land of western side of the suit premises is
let on rent to Mr.Babulal Kalidas Panchal owner of Might
Industries and the plaintiff is receiving rent from Might
Industries. Now, looking to the oral evidence as well as
the documentary evidence produced by the parties, it is
required to be looked into whether the defendant has
committed breach of terms and conditions of tenancy and
the plaintiff is entitled for eviction decree under Section-
13(1)(a) of the Act read with Section-108 (o) of T.P.Act.
"Section-13(1): Notwithstanding anything contained in
this Act (but subject to the provisions of Sec 15) a
landlord shall be entitled to recover possession of any
premises if the Court is satisfied-
(a) that the tenant has committed any act contrary to the
provisions of clause-(o) of Sec.108 of the Transfer of
Property Act, 1882.."
"Section 108(0): The lessee may use the property and its
products (if any) as a person of ordinary prudence would
use them if they were his own; but he must not use, or
permit another to use, the property for a purpose other
than that for which it was leased, or fell or sell timber,
pull down or damage buildings belonging to the lessor,
or work mines or quarries not open when the lease was
granted, or commit any other act which is destructive on
permanently injurious thereto:"
The plaintiff has proved that the defendant has made
encroachment on open land on western side of the suit
premises and put up construction of shade. Looking to the
facts of present case, the question is arise whether
encroachment made by tenant on adjoining land of the
suit premises which is located on western side is amount
to breach of terms and conditions and the plaintiff is
entitled for eviction decree under the provision of Section-
108(0) of T.P.Act, read with section 13(1) (a) of the
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Bombay rent act.
10 In case of Deviprasad Vrajlal Kachhiya Vs.
Chhotalal Narotamdas Panchal & Anr, reported in 1993(1)
GLR Page No.1703, the Hon'ble Gujarat High Court at
para.12 of the said judgment has observed that:
Para (12)
"The act on the part of tenant of making an
encroachment on the open land / space to the west of
the demised premises could not be covered under any
acts enumerated in clause(o) of Sec.108 of T.P.Act. The
rent note exh.40, also does not laid down any covenant
in this regard. In the facts of present case also, it cannot
be said that there is a breach of statutory terms on the
part of tenant. Even if such covenant is made in rent
note and has been breached, then in that case also, it
cannot be said to be a breach or violation of provision of
Sec.13(1)(a) Encroachment by tenant on open space
which is adjacent to the demised premises and not
forming part, thereof, could not be said in any case, a
breach of the terms of the tenancy. Such breach, even if
made by tenant will be breach of personal obligation and
it can not be equated with the breach of condition of
tenancy. Encroachment by tenant upon adjacent land
towards west of the demised premises could be at the
best, said to be an act of trespass committed by the
tenant simplicities and not a covenant or even the
breach of the statutory terms of tenancy...."
6.6 The learned Small Causes Court, in aforesaid findings,
clearly recorded that tenant has encroached upon the space
adjacent to demised premises, also constructed shed thereon.
Learned trial Court, however, termed such act as personal
obligation of the tenant. Learned trial Court did not consider
encroachment by tenant as breach of trust or conditions of the
rent note and with all aforesaid findings dismissed the suit.
What noticeable from the finding is that the learned trial
Court has unequivocally believed that the tenant has made
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encroachment upon landlord's property. The tenant did not
challenge this adverse finding recorded in Issue No.4 by way
of filing any appeal or cross-objection in the appeal filed by
the landlord.
6.7 The learned appellate Court referred to Commissioner
report so also referred to execution of the rent-note and
believed that encroachment upon open land or space belongs
to landlord breaches the terms and conditions of the rent-
note. The findings of the learned appellate Court, in paras:11,
12 and 13, read as under:
"11. Now if we peruse the deposition of defendant
tendered in form of affidavit of evidence under Order 18
Rule 4 of CPC at Exh.35, the defendant has reiterated the
facts as averred in Exh.11 i.e. in written statement.
During cross-examination the defendant has admitted
execution of rent note produced at Exh.37. The defendant
has also admitted that in earlier H.R.P.Suit No.2373 of
2008 the plaintiff has carried out local inspection of the
suit premises. Further, it transpires from the cross-
examination of the PW 1 that during the course of trial
the learned trial court has exhibited the photographs
produced at Mark 38/1 and 38/3 as above said both
photographs were identified as suit premises by the
defendant. The said photographs are produced at
Exh.37(A) on record. Considering said both photographs,
it reveals that there exists one big gap as open door
without any grills or frame. Further, iron grill in form of
door can be found lying in the room of the suit premises.
It also found that said open gap in the wall gives a way to
enter into the open land situated adjoining to the suit
premises. The plaintiff has relied upon court
commissioner report and map which was carried out in
H.R.P.Suit No.2373 of 2008 vide Exh.44. Considering said
court commissioner report, it can be ascertained that the
court commissioner has noted that on western side of the
suit premises, the defendant has placed a door and on the
adjoining land on western side of the suit premises, the
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defendant has made construction of shade. The court
commissioner has also noted that in shade, machinery of
paper printing were found lying. Thus, in the month of
October 2008, the court commissioner has found the
construction of the shade in the open land which was
admittedly not a rented premises. The present suit is
instituted-on-07-04-2009-and it is not a case of the
defendant that the said shade is not belonging to him or
the said shade is already been removed from the
adjoining land of the suit premises. It is noteworthy here
that defendant/tenant has not examined any neighboring
witness to negate or to rebut the Court Commissioner
Report.
12. In pretext of above said evaluation of evidence now if
we consider the impugned judgment learned trial court
rightly weigh the documentary evidence produced by the
plaintiff. The learned trial court has rightly observed that
the defendant has made a big gap on the wall of western
side of the suit premises. Considering the court
commissioner report, the learned trial court has observed
that the defendant has made encroachment on open land
at western side of the suit premises and put up
construction of shade and therefore the learned trial
court has rightly replied for the issue no.4 (iel in context
with the encroachment and illegal construction of shade)
in affirmative. Further, learned trial court has also
evaluated the rent note produced at Exh.37 and further
held that defendant has no right to use western side
entrance of the suit premises. It is pertinent to note here
that against such affirmative findings present respondent
tenant has not filed any objection or appeal before
competent court. In other words, the learned trial court
has held that the respondent tenant has illegally
encroached in open land adjoining to the rented premises
and further illegally constructed shade in the said open
land which was belonging to appellant landlord. However,
learned trial court has not found it proper to pass eviction
decree in favour of landlord under Section 13(1)(a) of the
Rent Act. The learned trial court has referred the above
said provision along with Section 108(0) of Transfer of
Property Act and further observed that as per the terms
of rent note Exh.37 the defendant-tenant has used only
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rented premises even though he has made a trespass on
open land, but such act of trespass or encroachment by
tenant not covered under the purview of Section 108(0) of
the T.P.Act and therefore the plaintiff is not entitled for
eviction decree under Section 13(1)(A) of the Rent Act.
Further, learned trial court has not accepted the closure
of western side door and put up a door on eastern side as
destructing act of the defendant tenant. The learned trial
Court has also not accepted it as an act of causing serious
damage to the suit premises.
13. Now the question arose before this Bench is whether
the respondent-tenant has committed breach of Section
108(0) of Transfer of Property Act by using adjoining land
not let out him? Section 13(1)(a) of the Bombay Rent Act
empowers the landlord to seek possession where the
tenant has committed an act contrary to Section 108(0) of
Transfer of Property Act. The said provision mandates
that the lessee shall use the property only for the purpose
for which it was let and shall not use it in a manner not
warranted by the lease. Encroachment and use of land
not included in the tenancy squarely fall within the
mischief of this clause.
Once the landlord proves that the rented premises are
limited to the area described in the rent note and
establishes by evidence that the tenant has occupied
adjoining land which is not included therein, the burden
shifts to the tenant to rebut such allegation with cogent
evidence. A mere denial in written statement and even
during cross-examination is not sufficient. In present
case, the defendant has neither rebutted the local
commissioner report and map nor sufficiently denied the
encroachment and illegal construction of shade in the
adjoining open land of the suit premises, therefore, tenant
has failed to discharge his burden and his plea of denial
remains unsubstantiated. Therefore, this bench is agree
with the findings of the learned trial court that the
conduct of the tenant amounts to encroachment and
unlawful user, disentitling him to protection under the
Rent Act."
6.8 Now it is in this juxta position the rent-note executed by
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the parties at Exh.37 becomes material and relevant. The
terms and conditions of the rent note are reproduced herein-
below. (classified from the Gujarati to English).
"Ihereby declare that the land under your
independent ownership and possession bearing Sub
Plot No. 298-2 of Final Plot No. 330 of Survey No. 298,
is situated at Ambika Udyog Nagar, opposite
Dariyakhan Ghummat, Shahibaug, Ahmedabad city. You
have made construction there, having Municipal
Sessions Number 328-7, I have rented the said
premises from you as a monthly tenant from the date
01/04/1972 on the following conditions. The details of
the same are as follows:
1. I am to pay the rent of the said premises in
advance every month as it accrues.
2. The monthly rent of the said premises is fixed at
Rs. 300-00 (Rupees Three Hundred only).
3. I am to bear the municipal tax, education cess,
and all other taxes of the said premises.
4. The monthly period of the rent shall be
considered to commence from the first date of
every English month and end on the last date of
the month.
5. The electricity consumption of the said premises
is my responsibility. I shall install a separate
meter in these premises and I shall provide you
with a detailed account of the units consumed
therein.
6. I am to give you Rs. 1000-00 (Rupees One
Thousand only) as a deposit. You shall have to
return my deposit amount to me when I hand
over the direct possession of your building and
after settling the accounts of the rent and every
other matter, having handed it over to you in the
same condition in which the building was taken
on rent.
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7. I am to use only the space rented by you. I am
not to use any outside space. Further, I am not
to place garbage, food waste, or any other thing
outside.
8. I shall not rent or sub-let the said premises to
anyone else. I shall not assign or transfer my
right, title, or interest as a tenant in the said
premises to anyone in any manner. I shall not
give the said premises to anyone even on
goodwill.
9. The main gate of your compound remains closed
from 10:00 PM to 5:00 AM, therefore, I shall not
move in or out during that time and if I raise any
dispute regarding the same, it shall be null and
void.
10. I shall not bring any truck or heavy truck into
your compound; if required, I shall use only a
handcart.
11. I shall not use the said premises for any illegal
work or activity.
12. If I raise a dispute regarding the payment of rent
without obtaining a valid rent receipt, it shall be
null and void.
13. The current main entrance of the said premises
is on the West side, which is to be closed at my
expense and cost, and a pathway/door for the
said premises is to be created on the East side. I
shall have to bear all the expenses regarding
that and I shall not take a refund or cost for the
same from you.
14. The standard rent of the said premises has been
fixed vide Miscellaneous Application No. 760/72.
Therefore, if I raise any dispute regarding the
standard rent, it shall be null and void.
15. The period of this lease shall be 11 months and
29 days and it shall be renewed after due
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consideration by both upon the expiry of the
said period. The renewal expenses shall be
borne by me.
The above lease deed has been executed after
perusing it, in a conscious and sound state of mind,
which is binding and acceptable to me and my
guardians/heirs."
6.9 The condition no:7 of the rent-note is very specific and
cler. It prohibits the tenant from using any other space or
except the space or area rented to the tenant. It also prevents
tenant from putting any material outside the rented premises.
It is in this background, Section 108 (n) of the Transfer of
Property Act,1882 becomes important which reads as under:
"108. Rights and liabilities of lessor and lessee.-- In the
absence of a contract or local usage to the contrary, the
lessor and the lessee of immoveable property, as against
one another, respectively, possess the rights and are
subject to the liabilities mentioned in the rules next
following, or such of them as are applicable to the
property leased:--
xxx .. ... ... ...
(n) if the lessee becomes aware of any proceeding to
recover the property or any part thereof, or of any
encroachment made upon, or any interference with, the
lessor's rights concerning such property, he is bound to
give, with reasonable diligence, notice thereof to the
lessor;
... xxx.
6.10 The lessee have become aware of any proceeding
to recover the property or any part thereof, or of any
encroachment, he owes the duty to notice to the lessor. So
even if some third party recovers any part of rented premises
or made encroachment upon rented premises, statutory duty
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owes upon the tenant to put the same to the notice of lessor in
contract. Here, the tenant - lessee himself encroached upon
open space belonging to the landlord and constructed
thereupon. It is undeniable facts. The tenant who owes
statutory duty to inform the landlord about encroachment
upon rented premises; in converse to his statutory duty,
himself has made encroachment upon landlord's property.
Condition No:7 which is reproduced herein-above clearly
states that tenant was not permitted to use any other space or
except the demise premises. Section 13(i)(a) of the Rent Act
permits the landlord to recover the peaceful and vacant
possession of the rented premises of Section 108 (o) of the
Transfer of Property Act, 1882. Apt to refer to Section 108 (o)
of the Transfer of Property Act, 1882, which reads as under:
"Section 108 (O):- The lessee may use the property and its
products (if any) as a person of ordinary prudence would
use them if they were his own; but he must not use, or
permit another to use, the property for a purpose other
than that for which it was leased, or fell or sell timber,
pull down or damage buildings belonging to the lessor, or
work mines or quarries not open when the lease was
granted, or commit any other act which is destructive or
permanently injurious thereto;"
6.11 The conjoint reading of Sections 108(n) and 108(o) of
the Transfer of Property Act, 1882 clearly stipulates that the
encroachment made by tenant upon the open space of the
landlord is in defiance of the terms and conditions of the rent
note is destructive act and permanently injurious to the
landlord-tenant relationship and to the lease property. It is
also a proven case that on the encroached area tenant has
constructed shed which is also injurious to the demise
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premises or open space owns by or belongs to the landlord.
7. In wake of the above reasons, the appellant-tenant
failed factually to satisfy that the reasons of the learned
appellate Court under the revision is not in accordance with
law. Under the limited revisional jurisdiction, this Court is
legally prevented from substituting facts recorded by learned
trial Court until it demonstrates that findings of facts are
perverse and not based on the evidence on record, this Court
should not interfere with the impugned judgment and decree.
8. In backdrop of above reasons, the present revision
being bereft of merits, requires to be dismissed and it is
dismissed accordingly. The judgment and order passed by the
learned appellate Court stands confirmed and Records and
Proceedings be sent back to the concerned trial Court,
forthwith.
(J. C. DOSHI,J)
MISHRA AMIT V.
