Trikamial & Ors Vs. Raori Prabhat Harji & Anr  INSC 644 (8
Sujata V. (J) Manohar Sujata V. (J) Punchhi, M.M. Mrs. Sujata V. Manohar.J.
1996 AIR 532 1995 SCC Supl. (4) 167 1995 SCALE (6)239
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.
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.
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.
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 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.
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.
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.
at the highest, it is a personal obligation cast on the tenant. We find it
difficult to accept this contention.
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.
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.
premises, the impugned judgment is set aside and the appeals are allowed with