Civil Appeal No 531 of 1979
Appeal by Certificate from the Judgment and Order dated the 23 10 1969 of the Bombay High Court in SCA No 1596 of 1965
D V Patel N N Keshwani and R N Keshwani for the Appellant
J Sorabjee R Daruwala P G Gokhale and J R Gagarat for the Respondent
The Judgment of the Court was delivered by KAILASAM J
This appeal is by the defendant tenant by certificate granted by the High Court of Judicature at Bombay against its judgment dated 21 1 69 is Special Civil Application No 1596 of 1965 granting a decree directing that the defendant shall vacate and deliver peaceful possession not only of the land demised to him under the lease in the suit but also of the three buildings which have been constructed on the demised land
By a lease deed dated 14th December 1948 the plaintiff gave to the defendant on lease two plots Nos 12 and 13 situated at Sitaladevi 1018 Temple Road Mahim for a period of 15 years commencing from 1st December 1948 at the yearly rent of Rs 10200 payable in equal quarterly instalments of Rs 2550 in advance
The lease deed provided that the defendant was at liberty to erect building and structures on the two plots of land
The defendant agreed to pay and discharge all taxes and outgoings imposed on the above two plots as also on the buildings to be created by the defendant
On the expiration of the term of 15 years or sooner termination of the lease the defendant agreed to deliver back the possession of the two plots to the plaintiff  free of all buildings erections and structures and levelled and put in good order and condition to the satisfaction of the plaintiff 
Clause IV of the lease provided for determination and forfeiture of the lease in the event of the rents having been allowed to be in arrears for more than 30 days or upon breach of conditions of the lease
The forfeiture clause also provided that upon forfeiture the plaintiff would be entitled to re enter upon not only the two plots of land but also the structures standing thereon
The defendant defaulted not only in payment of rent but also in payment of taxes due in respect of lands and buildings which he erected
The plaintiff filed a suit in 1951 for ejectment
The defendant filed an application for the fixation of standard rent and the standard rent was fixed at Rs 435 per month from September 1 1950
A compromise was entered into between the parties in the suit on 5th March 1954 by which the parties agreed on a rent of Rs 435 per month from September 1950 to February 1954
An appeal against the fixation of standard rent of Rs 435 per mensem was disposed of on 28th June 1955 whereby standard rent was fixed at Rs 620 per month from 1st September 1950
The defendant again defaulted in payment of rent and taxes
The arrears of rent amounted to Rs 1147230 and taxes to the extent of Rs 11205360 for the period ending 30th September 1960
The plaintiff by a notice determined and forfeited the lease and called upon the defendant to deliver possession of the lands alongwith structures thereupon
The notice also specified that the notice was not only a notice of forfeiture but also notice under section 12 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter referred to as the Bombay Rent Act
On 1st December 1961 as the defendant failed to pay the arrears of rent and the taxes the plaintiff filed the present suit and prayed for a decree for ejectment against the defendant in respect of two plots of land and also the buildings and structures standing thereon and claimed arrears of rent of Rs 1147230 and mesne profits at the rate of Rs 620 1019 per month
The defendant filed written statement and denied the allegations made in the plaint
The defendant in order to get the benefit of the provisions of Section 123 b of the Bombay Rents Act applied for time for making deposit of arrears of rent
The application was taken on the 20th June 1962 and further time was granted to enable the defendant to make the deposits
Time was extended on several occasions and finally on 6th August 1962 the defendant informed the court that he was not in a position to make any deposit at all
After the issues were framed and the suit was taken up for trial the defendant once again applied for relief under section 123b of the Act and prayed that he may be allowed to deposit the arrears of rent and cost
The deposit was accepted by the Court after making an endorsement accept without prejudice
Subsequently on 11th November 1964 the trial Court passed a decree for ejectment in respect of plots and the buildings in favour of the plaintiff
A decree was granted regarding arrears of rent and for mesne profits
Both the plaintiff and the defendant preferred appeals and the Bench of two Judges of the Court of Small Causes by a common judgment disposed of both the appeal on 4th April 1965
The appellate Court held that it had no jurisdiction to give a decree for ejectment in respect of the two buildings constructed on Plot No 12 by the defendant
It held that clause IV of the lease which permitted forfeiture was in the nature of penalty and the defendant was entitled to be relieved from the liability to deliver possession of the buildings constructed by him upon forfeiture by the plaintiff
It also found that the defendant was entitled to be relieved from the penalty of forfeiture of the lease under Ss 114 and 114A of the Transfer of Property Act
It rejected the plea of the defendant that he was always ready and willing to pay all arrears of rents and found that because of repeated defaults the defendant was not entitled for relief from ejectment under section 123 b of the Bombay Rent Act
The plaintiff filed a revision petition against the order of the appellate Court declining to direct possession of the two buildings and the defendanttenant filed an appeal against the order of the appellate Court directing ejectment of the defendant from the two plots of lands mentioned in the plaint
The High Court disposed of both the revisions by the plaintiff and the appeal by the defendant by a common judgment whereby it allowed the revisions filed by the plaintiff and dismissed the appeal of the defendant and decreed the suit of the plaintiff directing the defendant to deliver peaceful possession of the land demised to him and also buildings which have been constructed by the defendant on the demised 1020 lands
It also confirmed the decree regarding arrears of rents and mesne profits
On behalf of the defendant it was submitted that the Court s jurisdiction is limited only to adjudicate on leased premises under the Bombay Rent Act and therefore it had no jurisdiction to try the suit regarding possession of the structures put upon the leased lands
It was pleaded that a relief regarding the superstructures will not be one under the provisions of the Bombay Rent Act
It was contended that as the suit is for a composite relief namely for the possession of the leased land and for the superstructures it is beyond the jurisdiction of the court and the suit as a whole should have been dismissed
It was submitted that in any event as clause IV in the lease deed is in the nature of penalty providing for the forfeiture of the structure which did not form part of the lease the decree for possession of the structures is not maintainable
In any event it was submitted that there could be no forfeiture of the structures on the ground that the municipal taxes were not paid and that the term as to payment of arrears of taxes cannot be considered as a clause in the lease deed and the defendant should be relieved against the penal clause
Lastly it was submitted that the Courts below were wrong in not granting relief under section 123 b of the Bombay Rent Act
Before considering the several contentions raised by the learned counsel for the appellant it will be useful to refer to the relevant clauses of the lease deed and the relief prayed for in the plaint
The lease deed dated 14th December 1948 executed by the plaintiff in favour of the defendant was a lease of two plots of land plot Nos 12 and 13 situated at Sitladevi Temple Road Mahim for a period of 15 years at an yearly rent of Rs 10200 payable in equal quarterly instalments of Rs 2550 in advance
Subsequently standard rent was fixed by the trial Court at Rs 435 which was raised by the appellate court to Rs 620 per mensem
The lease permitted the defendant to erect buildings and structures in the two plots of land
The buildings were erected in only plot No 12 and not in plot No 13 which remains unbuilt and vacant
The defendant agreed to pay and discharge all taxes and outgoings imposed on the above two plots as also to the buildings to be erected by the defendant
The defendant also undertook to deliver possession of the two plots to the plaintiff free of all buildings erections and structures on the expiration of the lease
Clause IV empowered the lessor to terminate the lease and provided that the lessor will be at liberty to re enter not only upon the two plots of the lands but also on the structures standing thereon
In the plaint it was stated that as the defendant had failed to pay rents and taxes and 1021 committed breach of conditions the plaintiff forfeited the lease and called upon the defendant to pay arrears of rent and taxes
The suit was based not only on the forfeiture of the lease but also for possession of the leased plots under section 12 of the Bombay Rents Act
In paragraph 9 of the plaint it is alleged the plaintiff say that in the event of the defendant contending that he has become a statutory tenant of the said land after the tenancy had been duly and validly terminated the plaintiff would submit that the defendant had failed and neglected to pay the arrears of standard rent amounting to Rs 1147230 upto 31st August 1961 and does not observe and perform condition 11b of his lease and so he is not entitled to the protection of the Bombay Rent Control Act
 In paragraphs 10 and 11 of the Plaint it is alleged that the provisions of the Bombay Rents Act 47 of 1947 apply to the said land and the Court has jurisdiction to entertain and try the suit
The reliefs asked for by the plaintiff in paragraph 13a is that the defendant may be directed to hand over peaceful possession of the lands to the plaintiff together with the buildings and structures standing thereon
Thus it would be seen that the plaint is based on the terms of the lease deed after forfeiting the lease and for the possession of the leased lands according to the terms of the Bombay Rent Act
The main defence which was raised by the tenant in the Courts below as well as before us is that the suit is not triable under section 28 of the Bombay Rents Act and in any event relief regarding possession of the structures would be beyond the scope of the relief contemplated in the Bombay Rent Act
Section 28 of the Bombay Rent Act runs as follows 28 1
Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason the suit or proceeding would not but for the provision be within its jurisdiction in Greater Bombay the Court of Small Causes Bombay
a X X X X X X X X X b X X X X X X X X X shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions 1022 and subject to the provisions of sub section 2 no other court shall have jurisdiction to entertain any such claim or question
 The Section confers jurisdiction on the Court of Small Causes Bombay to entertain and try any suit or proceedings between a landlord and tenant relating to recovery of rents or possession of any premises to which any of the provisions of this part apply
The jurisdiction thus conferred enables the Court to try any suit between the landlord and the tenant relating to recovery of possession of the premises
It is admitted that the premises is the two plots of land only and not the superstructure
The plea of the plaintiff is that the relief for recovery of possession of the plot which is the subject matter of the lease would also include relief relating to the superstructure as being related to relief of recovery of possession of the leased premises namely the plots and land
The submission on behalf of the plaintiff is that as the jurisdiction of Civil Courts have been specifically excluded and the matters relating to possession of the leased premises it would imply that not only relief of the possession of the leased lands but also matters relating to it would be beyond the jurisdiction of other courts and therefore the plaintiff has no other option than to file the suit for relief as to the structure being only ancillary and incidental to the relief of possession of the leased lands
Before we proceed to consider this plea we might note that Mr Soli J Sorabjee learned counsel for the plaintiff submitted that though it might be open to him to contend that the reliefs relating to the structures based on the terms of the contract would also be decisive on an application made under the act as being related to the recovery of the possession of the leased premises he would content himself with the plea that the relief as to structures is so closely and inextricably related to possession of the land that no effective relief of possession of the leased lands could be given without giving relief in respect of structures
Relief as to structures also should inevitably follow
If this submission is accepted it would be unnecessary for us to consider the other limb of the arguments on behalf of the appellants that the relief claimed as a result of the forfeiture is not enforceable by a Court administering Bombay Rent Act or that the plaintiff cannot enforce terms of forfeiture which did not relate to leased plots or that the defendant would be entitled to relief against forfeiture under Ss114 and 114A of the Transfer of Property Act
All the Courts below have found that the defendant is not entitled to any relief under section 123b of the Act and that so far as the leased plots are concerned the plaintiff is entitled to possession under the Bombay Rent Act
After filing of the suit it is seen that the 1023 defendant asked for time for payment of arrears of rents and the matter came up before the Court on the 28th June 5th July and 6th August 1962 for payment of arrears
On the last date the appellant s advocate informed the Court that the appellant was not in a position to pay the arrears
It is only two years later on 18th September 1964 the defendant obtained Court s permission to deposit balance of arrears of Rs 12800 and deposited the amount under protest by the plaintiff
The Trial Court after considering all the facts found that there was intention of default and neglect in payment of rent
The conduct of the defendant was wilfully not ready and willing to pay the rent
It again found that the payment of arrears was not made diligently and the defendant had flouted the orders of the Court to deposit the arrears of rent and the discretion cannot be exercised in his favour when he persisted in not paying the taxes for about 12 or 13 years and was constantly in arrears of rent for about 14 months at the time of the notice
The appellate Court also came to the same conclusion holding that it is not a case where discretion of the Court under S12 3 b should be exercised in favour of the tenant
The High Court also confirmed the findings of the Court below that the defendant was not entitled to relief under Section 123b of the Act
On the facts we are also in agreement with the findings of the three courts below that the persistent default of the defendant on various occasions and his clear statement that he was not in a position to pay the arrears would exclude any relief under section 123 b
In a recent decision of this Court reported in Ganpat Ladha vs Sashikant Vishnu Shinde it has been held that when the tenant does not fulfil the conditions as required under section 123b he could not claim protection under section 123b
This Court observed that it is difficult to see how judicial discretion exercisable in favour of the tenant can be found under section 123b even where conditions laid down by it were not satisfied
This Court overruled the decision of the case of Bombay High Court in Kalidas vs Bhavan Bhagwandas
The conditions specified in section 123 b will have to be strictly observed by the tenant if he wants to avail himself of the benefits provided under the Section
On the facts therefore we find that the plaintiff is entitled to a decree for possession of the two plots under the provisions of the Bombay Rent Act
As plot No 13 has not been built upon and is vacant there could be no difficulty in confirming the decree for possession in favour of the plaintiff regarding plot No 13
1024 In Importers and Manufacturers Ltd vs Pheroze Framroze Taraporewala and Ors this Court held that the claim for compensation was merely an incidental claim for possession under the Act
Section 28 had conferred jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord and tenant for recovery of rent or possession but also to deal with any claim or question arising out of this Act or any of its provisions and section 28 was thus wide enough to cover the question raised as between the plaintiff and the sub lessee
It will be seen that the plea that a suit against a sub lessee is not within the jurisdiction of the Small Causes Court was negatived by this Court and it was held that section was wide enough to cover the questions raised between the plaintiff and the sub lessee
In Babulal Bhuramal and Anr
vs Nandram Shivram and Ors
related to sub lessee of the premises
The suit was filed for ejectment of the tenant and the sub tenant in the Court of Small Causes
The tenant and the sub tenants later filed a suit before the Bombay City Civil Court for declaration that the lessee was a tenant and was protected from eviction by the provisions of the Bombay Rents Act and that as B and C were lawful sub tenants were also entitled to possession
This Court agreed with the view taken by the High Court that section 28 of the Act barred the City Civil Court from entertaining the suit filed by the lessees and the sub lessees as section 28 conferred the right on the Small causes to entertain a suit between a landlord and a tenant in respect of a claim which arose out of the Act or any of its provisions
Thus it prohibits a suit from being entertained by the City Civil Court at the instance of the tenant
In Raizada Topandas and Anr
vs Ms Gorakhram Gokalchand it was held that if a suit is framed by a landlord or a tenant and relief asked for is in the nature of a claim which arises out of Act or any of the provisions then only and not otherwise will be covered by section 28 and as there were no such claim the City Civil Court has jurisdiction to entertain the suit
The plaint in the case proceeded on the footing that during the period of agreement the appellants were mere licensees and after the expiry of the agreement they were trespassers
As the plaint in terms negatived the relationship of the landlord and tenant it was held that the Rent Court had no jurisdiction
This decision cannot be of any help to the appellant
1025 In Sushila Kashinath Dhonde and Ors
vs Harilal Govindji Bhogani and Ors
 this Court held that it is not necessary that there should be relationship of landlord and tenant in respect of all the matters covered by section 281 of the Act so as to give jurisdiction to the Court of Small Causes
It further held that in respect of other matters dealt with sub section it is not necessary that the relationship of landlord and tenant should exist between the parties before the Court
The Court repelled the contention that a charge created by the deed executed between the parties did not give rise to any claims or questions arising out of the Bombay Rents Act or its provisions and held that nature of reliefs to be granted to the plaintiff are all claims or questions arising out of the Act and can be dealt with only by the special court constituted under section 28 of the Act
No doubt the deed of charge furnished a cause of action but its legality validity and binding nature and other incidental matters connected therewith are all questions arising out of the Act and the plea on behalf of the appellants that the rights of the plaintiff did not flow from the Act or any of its provisions but from the contract could not be accepted
The decisions referred to above will show that the plaintiff landlord of the land is entitled to claim the relief for possession of his land and in effect the decree for possession of the land would mean that the land should be delivered to him without the structures
Apart from the relief under the lease deed the plaintiff is entitled to succeed as he has established that there was default of payment under the provisions of the Bombay Rents Act
The jurisdiction of the Small Causes Court to grant an effective decree for possession of the land cannot be denied
Equally untenable is the contention of the respondent that as the plaintiff has sought two reliefs one under the Bombay Rent Act and another under the Contract the entire plaint must be rejected
As we have already observed so far as the relief of possession of the premises ie the land is concerned it is exclusively within the jurisdiction of the Small Causes Court
In asking for the relief for possession of the land the plaintiff is entitled to incidental and consequential reliefs such as for effectively taking possession of the plot without the structures
The prayer in the plaint asking for possession of the land including the structures would not take the suit out of the competence of the Small Causes Court
In this view it is not necessary for us to go into the question as to whether the terms in the contract regarding the forfeiture can be enforced by the Small Causes Court
It is sufficient for the purpose of this Suit to hold that the plaintiff is entitled to seek for 1026 possession of the land which is the premises in the suit and in getting possession of the land he is entitled to ask for possession of the land without any superstructures
In this connection reference may be made to the nature of the relief which the plaintiff is entitled to
In Ramchandra Raghunath Shirgaonkar vs Vishnu Balaji Hindalakar it was held that the ordinary rule of law is that the tenant must give up vacant possession of the land demised at the end of the term and that if he builds on the land of the tenancy he builds at his own risk
At the end of the term he can take away his building but if he leaves it there it becomes the landlord s property
The Court further held that the tenant who had been in possession of land for a large number of years and built a costly and substantial house on the land of the tenancy with the knowledge of the landlord is entitled to some compensation In K Arumugham Naicker and Anr
vs Tiruvalluva Nainar Temple that after the determination of the lease lessees were required to deliver over possession of the demised premises to the lessor and the lessees were entitled to remove the structures which they might have erected during the continuance of the tenancy
The lessees however failed to remove the structures on the date of the determination of the tenancy and on the next date the premises were occupied by other lessees it was held the lessees could remove the structures on and not after determination of the tenancy and having failed to remove the same on the determination of the tenancy they lost not only their right to remove the structures after the determination of the tenancy but also all right title and interest in those structures In K Arumugham Naicker and Anr
vs Tiruvalluva Naickar Temple by its Trustee it was held that where a court directs by a decree or order vacant possession of land that decree could be made effective by directing its own officers to remove the super structures in the property and deliver vacant possession of the properties to the decree holder
It is unnecessary to have any specific power in that behalf
The power to remove the superstructures is an incidental necessary and ancillary power to the power to deliver possession of the property
We are satisfied that the Small Causes Court had jurisdiction to entertain the suit of the plaintiff not only for possession of the land which is the premises under the Act but also for other reliefs to make the decree for possession effective
In this connection the plaintiff is entitled to ask for relief regarding the superstructures
This incidental or ancillary relief would not take out the suit beyond 1027 the jurisdiction of the Small Causes Court
The plea that the composite relief had been asked for and that the entire plaint ought to be rejected is also unsustainable
In the result we agree with the contentions of the plaintiff that in asking for relief as to possession of the land he is entitled to ask for the demolition of the structures and for grant of vacant possession of the plots
So far as the plot No 13 is concerned there is no difficulty
The plot is not built upon and is vacant and therefore we have no hesitation in confirming the decree for possession so far as the plot No 13 is concerned
Plot No 12 has been built upon
There are about three storeys consisting of about 72 flats shops with carpet area of 13000 square ft and the cost of building with superstructures in 1949 was about Rs 600000 
We may in this connection note that from the date of the decree passed by the High Court on 23rd October 1969 the defendant has not paid arrears of rents or the taxes due on the buildings
He is in law bound to pay the arrears of rent and the municipal charges which he has undertaken
On a consideration of the facts of the case we feel that there are no grounds for interfering with the decree passed by the High Court for possession not only of the vacant plot but also of the superstructure and mesne profits and arrears of rent
The law provides for the tenant to remove the superstructure on the termination of the tenancy
If it is not thus removed the tenant loses all his rights to the superstructure and the landlord becomes entitled to it
But in a case where there is a substantial building it is only reasonable that the court should explore the possibility of payment of some compensation to the tenant who had put up this structure
But in this connection we are reminded that for several years neither the arrears of rent nor the taxes amounting to several lacs of rupees had been paid by the tenant
Not only the tenant but several persons who have put up flats at their own costs may press their claim for compensation and it will be difficult to determine as to who are entitled to compensation and the proportion of the compensation to which they will be entitled to
We enquired of the parties at the conclusion of the arguments if it was possible to come to some arrangement regarding the superstructure but to our regret the parties informed us that they could not arrive at any settlement
In the circumstances we have no alternative except to confirm the judgment and decree passed by the High Court
We therefore dismiss the appeal but in the special circumstances of this case we make no order as to costs in this Court
SR Appeal dismissed


Summary:
By a lease dated 14th December 1948 the respondent plaintiff gave to the appellant defendant on lease two plots Nos 12 and 13 situated at Sitaladevi Temple Road Mahim for a period of 15 years commencing from 1st December 1948 at the yearly rent of Rs 10200 payable in equal quarterly instalments of Rs 2550 in advance
The lease deed provided that the appellant was at liberty to erect building and structures on the two plots of land
The appellant agreed to pay and discharge all taxes and outgoings imposed on the above two plots as also on the buildings to be erected by the defendant
On the expiration of the term of the lease the appellant agreed to deliver back the possession of two plots to the respondent free of all buildings erections and structures and levelled and put in good order and condition to the satisfaction of the respondent 
Clause IV of the lease provided for determination and forfeiture of the lease in the event of the rents having been allowed to be in arrears for more than 30 days or upon breach of conditions of the lease
The forfeiture clause also provided that upon forfeiture the respondent would be entitled to re enter upon not only the two plots of land but also the structure standing thereon
The appellant constructed on plot No 12 a three storied building consisting of about 72 flats shops with carpet area of 13000 square feet and the cost of the building with superstructures in 1949 was about Rs 600000 
Since the appellant defaulted not only in payment of rent but also in payment of dues in respect of lands and buildings which he erected the respondent filed a suit in 1951 for ejectment
The appellant filed an application for the fixation of standard rent and the standard rent was fixed at Rs 435 per month from September 1 1950
A compromise was entered into between the parties in the suit on 5th March 1954 by which they agreed on a rent of Rs 435 per month from September 1950 to February 1954
An appeal against the fixation of standard rent of Rs 435 per month was disposed of on 28th June 1955 whereby standard rent was refixed at Rs 620 pm from 1st September 1950
The appellant again defaulted in payment of rent and taxes
The arrears of rent amounted to Rs 1147230 and taxes to the extent of Rs 11205360 for the period ending 30th September 1960
The respondent by a notice determined and forfeited the lease and called upon the appellant to deliver possession of the lands alongwith structures thereupon
The notice also specified that the notice was not only a notice of forfeiture but also notice under section 12 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947
On 1st 1016 December 1961 as the appellant failed to pay the arrears of rent and the taxes the respondent filed the suit for ejectment and prayed for a decree for ejectment against the appellant in respect of two plots of land Nos 12 and 13 and also the buildings and structures standing thereon and claimed arrears of rent of Rs 1147250 and mesne profits at the rate of Rs620 pm The appellant in order to get the benefit of section 123b of the Rent Control Act 1947 applied for time for making deposit of arrears of rent
The appellant could not make the payment within the extended time allowed but after the issues were framed and the suit was taken up for trial he deposited the arrears of rent and cost in the Court after the Court made an endorsement accept without prejudice
Subsequently on 11th November 1964 the Trial Court passed a decree for ejectment in respect of plots and the buildings in favour of the respondent
A decree was granted regarding arrears of rent and for mesno profits
Both the appellant and the respondent preferred appeals and the Bench of two Judges of the Court of Small Causes by a common judgment disposed of both the appeals on 4th April 1965
The Appellate Court held that it had no jurisdiction to give a decree for ejectment in respect of the two buildings constructed on plot No 12 by the appellant
It held that clause IV of the lease which permitted forfeiture was in the nature of penalty and the appellant was entitled to be relieved from the liability to deliver possession of the buildings constructed by him upon forfeiture by the respondent
It also found that the appellant was entitled to be relieved from the penalty of forfeiture of the lease under section 114 and 114A of the Transfer of Property Act
It rejected the plea of the appellant that he was always ready and willing to pay arrears of rents and found that because of repeated defaults the appellant was not entitled for relief from ejectment under section 123b of the Bombay Rent Act
The respondent filed a revision petition against the order of the appellate Court declining to direct possession of the two buildings and the appellant tenant filed an appeal against the order of appellate Court directing his ejectment from the two plots of lands Nos 12 and 13
The High Court disposed of both the revision petition and the cross appeal by a common judgment whereby it allowed the revision petition of the respondentlandlord and dismissed the appeal of the appellanttenant and decreed the suit of the respondent directing the appellant to deliver peaceful possession of the land demised to him and also buildings which have been constructed by the appellant on the demised lands
It also confirmed the decree regarding arrears of rents and mesne profits
Hence the appeal by certificate
Dismissing the appeal the Court
 HELD 1
Section 28 of the Bombay Rent Act 1947 confers jurisdiction on the Court of Small Cause
Bombay to entertain try any suit for proceedings between a landlord and tenant relating to recovery of rents or possession of any premises to which any of the provisions of that part applied
The Jurisdiction thus conferred enables the Court to try any Suit between the landlord and the tenant relating to recovery of possession of the premises
1022 A B Importers and Manufacturers Ltd vs Pheroze Framroze Taraporewala and Ors  Babulal Bhura Mal and Anr
vs Nandram Shivram and Ors   followed
1017 Raizada Tapen Das and Anr
vs Ms Gorakhram Gokalchand   Sushila Kashinath Dhonde and Ors
vs Harilal Govinji Bhogani and Ors  explained and distinguished
The conditions specified in section 123b of the Bombay Rent Act 1947 will have to be strictly observed by the tenant if he wants to avail himself of the benefits provided under the section
In the instant case the persistent default of the appellant tenant on various occasions and his clear statement that he was not in a position to pay the arrears would exclude any relief under section 123 b of the Act
The respondent plaintiff would be entitled to a decree for possession of the plots under the provisions of the Bombay Rent Act and in effect the decree for possession of the land would mean that the land should be delivered to him without the structures
1023 D G 1025 D E Ganpat Lodha vs Sachikant Vishnu Shivale   applied 3
To contend that as the respondent plaintiff has sought two reliefs one under the Bombay Rent Act and another under the contract the entire plaint must be rejected is wrong
In asking for the relief for possession of the land
the respondent plaintiff is entitled to incidental and consequential reliefs such as for effectively taking possession of the plot without the structure that is he is entitled to ask for the demolition of the superstructure
The prayer in the plaint asking for possession of the land including the structures would not take the suit out of the competence of the Small Causes Court
1025 E F G Ramachandra Raghunath Shirgaonkar vs Vishnu Balaji Hindalekar
 Khimjee Thakorsee vs Pioneer Fibre Co Ltd AIR 1941 Bom
337 and K Arumugham Naicker and Anr
vs Tiruvalluva Nainar Temple by its Trustee
AIR 1954 Mad 985 approved