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PETITIONER: PATEL CHANDULAL TRIKAMIAL & ORS.

       Vs.

RESPONDENT: 1. RAORI PRABHAT HARJI2. RABARI MALJI RAIMAL (DEAD) BY LRS.

DATE OF JUDGMENT08/11/1995

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) PUNCHHI, M.M.

CITATION:  1996 AIR  532            1995 SCC  Supl.  (4) 167  1995 SCALE  (6)239

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar.J.      The appellants in both these appeals are the owner or a large piece  of land.  Out  of  this  land.  the  appellants created tenancies  of a portion of the land in favour of the original respondents  with effect from land in favour of the original respondent with effect from let of April, 1954. The respondents are cow-herds. The appellants had given the said land to the respondents for keeping or grazing their cattle. The respondents  were required  not to make any other use of the said  land. The  rent  note  executed  by  each  of  the respondents-tenants contained the following term:-      "I have measured the land. I will  not      use  the  land  lying  beyond  the  said limits,.  I  will   put  up   a  wire-fencing demarcating    the demised land."      Both the  tenants, in contravention of this term in the rent  note,   encroached  upon  the  adjacent  land  of  the appellants and  used  it  for  tethering  their  cattle.  On learning about  the encroachment, the appellants addressed a notice dated  22nd of  January, 1968 terminating the tenancy on the  ground, inter  alia, of having committed a breach of the terms  of the tenancy. The appellants had also contended that the  respondents had  committed defaults  in payment of rent and were in arrears of rent.      The  suits   filed  by   the  appellants   against  the respondents were  decreed by  the trail  judge on  both  the grounds, namely,  that each  of the  tenants had committed a breach of  the terms  of the tenancy and were also not ready and willing  to pay  the standard  rent in  respect  of  the demised land.      The two  tenants preferred  separate appeals before the appellate Bench  of the Court of Small Causes. The appellate court held  that the  respondent in present CA No. 1110/1980 was not  in arrears  of rent.  while the  respondent in  the

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present CA  No. 1111/1980 was. It also peld that the tenants in the  appeals had  committed a  breach of the terms of the tenancy. Hence  a decree  under Section  12(1) of the Bombay Rents, Hotel  and Lodging  House Rates Control Act, 1947 was passed against  both the  tenants. A  decree  under  Section 12(3) (b)  of the  Act was  also passed  in respect  of  the respondent in  CA No.  1111/1980. The  Revision Applications filed by both the tenants and/or their legal representatives were,however, allowed  by the High Court. The High Court has taken the  view that the term in the rent note set out above did not  constitute a  term or condition of tenancy. It also held that  the respondent  in CA  No. 1111/1980  was not  in arrears of  rent. Hence  the Revision  Applications filed by both the  tenants were allowed. The present appeals are from the tenants  were allowed.  The present appeals are from the above judgment of the High Court.      The common  question which has been raised before us is whether the above term constitutes a term of the tenancy. On facts, there  is no disputs that the tenants have encroached upon the  adjacent land of the landlord and are using it for the purpose of tethering their cattle.      It is  contended before  us that  the above term in the rent note  cannot be  considered as  a term  of the  tenancy because it  does not  relate to the land in respect of which the tenancy  was created.  It relates to the adjoining land. Hence at  the highest,  it is  a personal obligation cast on the tenant.  We find it difficult to accept this contention. Clearly the  tenancy of  land was  given for  the purpose of tethering cattle.  The tenancy  was of  a portion of an open piece of land which belonged to the landlord. Looking to the nature of  the use  to which  the open land was to be put by the tenants,  it was  provided in  the rent  note  that  the tenant will  use only  the portion of the rent note that the tenant will  use only the portion of the open land which was given to  him. and  will not  use the open land lying beyond the limits  of the  land given  to him on tenancy. The clear intention of  the parties was to ensure that the tenant only used the  land demised to him and would not allow his cattle to stray  beyond the  demised land.  For the same reason, it was also  provided in  the rent note that tenant would fence the land.  In this  context, this  is a  condition which  is imposed on the tenant as a condition of his tenancy. Looking to the  purpose for which the tenancy was given, this is not just a  personal  obligation  cast  on  the  tenant  not  to tresspass upon  the adjacent  land. The  landlord out of his entire land,  has given  only a  portion of  the land to the tenant on  condition that  he confines  his  cattle  to  the demised land and does not allow his cattle to tresspass over the owner’s land. Such a condition is not severable from the terms of  the tenancy  looking to  the nature of the tenancy which was  granted. It  relates to  the manner  in which the demised land  was to be used by the tenant. Both the fencing and the  obligation not  to go  beyond the  fencing  or  the demised land  have to be read together. Hence the obligation contained in  the rent  note is not a personal obligation of the respondents.  It is an obligation of the respondents. It is an  obligation which  has been  cast  on  them  in  their capacity as tenants of an open plece of land which was given to them for tethering cattle. It is directly linked with the manner in  which the  demised land  is to  be enjoyed by the tenants and is an integral part of the rent note.      Respondents in both the appeals have committed a breach of this  term of the tenancy. The first appellate court had, therefore, rightly  passed a cecree of eviction in favour of the appellants.

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    In the premises, the impugned judgment is set aside and the appeals are allowed with costs.