D. C. SRIVASTAVA, J. ( 1 ) THIS is tenants Revision under Section 29 (2) of the Bombay Rent Act. ( 2 ) BRIEF facts giving rise to this revision are as under : the three revisionists were the tenants of open peace of land from the deceased plaintiff - landlord. The respondents 6 to 17 are the legal representatives of deceased landlord. The respondents No. 1 to 5 are alleged to be sub-tenants from the three revisionists. ( 3 ) SUIT for eviction of the revisionist was filed by the landlord on the ground of sub-letting and breachof terms of the contract of tenancy. The Suit was dismissed by the trial Court. Appeal was preferred by the landlord, but in the Appeal eviction on ground of alleged sub-letting was not pressed. Inter-alia the ground pressed in the Appeal was that the tenants revisionists committed breach of terms of contract of tenancy, hence they were liable to be evicted. The Appellate Court found that the tenants - revisionists committed breach of Para : 5 of the Rent Note and as such they were entitled to be evicted. Accordingly, decree for eviction was passed. It is this decree for eviction against the revisionists passed by the lower Appellate Court which is under challenge in this revision. ( 4 ) LEARNED Counsel for the respondents 6 to 17 raised preliminary objections that the revision is not maintainable and that the revisional court will not interfere with the findings of the lower Appellate Court which is based on proper appreciation of evidence on record. It was further argued that the revisional court can not re-assess the evidence and substitute its own findings. I, however, do not find any substance in this preliminary objection. It is not the case where this court is going to re-assess the evidence on record and substitute its own findings. On the other hand the only point for adjudication in this revision is whether the Appellate Court committed manifest error of law in interpreting Clause (5) of the Rent Note and further committed error in considering the provision of Sections 12 (1) and 13 (1) (a) of the Bombay Rent Act. This exercise is not beyond the scope of revisional jurisdiction. This exercise is not beyond the scope of revisional jurisdiction. On the other hand whether interpretation of document and certain provisions of the statute are correct or not is certainly within the jurisdiction of revisional court and it can consider the question whether the interpretation of clause (5) of the Agreement/rent Note, vis-a-vis Section 12 (1) and 13 (1) (a) of the Bombay Rent Act is correct or not. ( 5 ) FOR proper appreciation of the contentions raised by the learned Counsel for the revisionists certain admitted facts are to be taken into account. National Silk Mills, a partnership firm, was a tenant of open piece of land. The tenant had constructed super-structure over the demised land with the permission of the landlord. The defendants No. 1 to 3 who are present revisionists purchased super-structure from National Silk Mills under Sale Deed dated 5. 4. 1963, thereafter plaintiff accepted the present revisionists as tenant of the suit land only. The Rent Note Ex. 32 was executed by the revisionists in favour of the plaintiff. The defendants 6 and 7 were sitting tenants when the land was in the tenancy of National Silk Mills. They were sitting tenants in the super-structure constructed by the previous tenant. Upon being admitted as tenants the revisionists never used and occupied the land. However, they put up their own structures in addition to the structure already standing over the demised land. It was alleged that the defendants 1 to 3, viz. the revisionists allowed the defendants 4,5 and 8 to make use of super structures constructed by the revisionists so also the Suit land. With this factual background it is to be seen whether the revisionists committed breach of clause (5) of the Agreement/rent Note. Para : 5 of the said Agreement (Exh. 32) is quoted below :"5. THE said leasehold land is taken on lease for our own use only and we have to use it as your tenant and therefore in no circumstances the said leasehold land or the construction thereon that may be put up by us can be given to anybody as sub-tenant, or by goodwill or in any other way. Our rights over the said property and on the structure put up by us on it by us cannot be transferred, assigned or gifted to other without taking prior permission from you in writing. Our rights over the said property and on the structure put up by us on it by us cannot be transferred, assigned or gifted to other without taking prior permission from you in writing. Moreover we can not enter into any type of partnership with anybody for the leasehold land or for the whole or part of the construction put up thereon. If we act against the said conditions, you shall be entitled to recover the vacant possession of the said land from us without notice and without dispute. In that no dispute from our side shall be tenable. Even then also if we dispute the same shall stand cancelled. "a plain reading of this clause in Agreement shows that the following obligations were imposed upon the revisionists which they accepted to follow :i) That open land was taken on lease by the revisionists for their own use only. The word "only" implies that it was not to be used by other person;ii) The land was to be used by the revisionists as tenants of the landlord;iii) In no circumstances the said lease-hold land or the constructions thereon that may be put up by the revisionists can be given to anybody as sub-tenant or by goodwill or in any other way;iv) The right of the revisionists over the said property, which means demised land and on the structure put up by them could not be transferred assigned or gifted to others without taking prior permission in writing from the landlord;v) There was also prohibition that the tenants can not enter into any type of partnership with anybody for the lease-hold land or for the whole or part of the construction put up thereon; ( 6 ) IT was specifically provided in this clause that if the tenants acted against the said condition the landlord would be entitled to recover vacant possession of the demised land. ( 7 ) FROM the admitted factual position mentioned above it is clear that some super structure was put up by the revisionists in addition to super structure which already existed and that the revisionists never used either the demised land or the super structure set up by them for their own use. In the earlier super structure sitting tenants were already there. This was thus breach of terms of tenancy. In the earlier super structure sitting tenants were already there. This was thus breach of terms of tenancy. Induction of defendants 4,5 and 8 may not amount to sub-letting in a strict sense of terms inasmuch as this plea was not pressed, but this induction coupled with the fact that the revisionists never used the demised land for their own purpose for which the tenancy was granted to them clearly speaks violation of aforesaid terms of tenancy. There was further violation of clause (5) in the sense that there was specific stipulation that in no circumstances the said lease-hold land or construction put up by the revisionists can be given to anybody as sub-tenant or by goodwill or in any other way. Thus, if defendants No. 4, 5 and 8 were inducted in the super structure this was certainly violation of clause (5) inasmuch as it will be construed to be transfer of possession in super structure and this transfer of possession was also prohibited in the Agreement. Learned Counsel for the revisionists contended that concept of dual ownership in the demised land and super-structure was not considered by the lower Appellate Court. According to her, the demised land may be in the ownership of the landlord, but certainly the super-structure belongs to the revisionists and they had right to use it in any manner they like. She contended that the revisionists were free even to sell the super-structure. I am affraid this contention can be accepted in view of express prohibition in Para : 5 of the Agreement/rent Note, which further provides that the tenants rights over the said property which means demised land and on the structure put up by them cannot be transferred, assigned or gifted to others without written permission from the landlord. Even temporary assignment without consideration is included in this stipulation in Para : 5 and admittedly no written prior permission from the landlord was obtained by the revisionists. In view of these violations it cannot be said that the revisionists did not commit breach of the conditions of tenancy. The Lower Appellate Court, therefore, did not commit any illegality in holding that the revisionists committed breach of the terms of the tenancy. In view of these violations it cannot be said that the revisionists did not commit breach of the conditions of tenancy. The Lower Appellate Court, therefore, did not commit any illegality in holding that the revisionists committed breach of the terms of the tenancy. ( 8 ) THE next point for consideration is whether the covenant in clause (5) of the Agreement is personal obligation of the tenants in its nature and whether breach of such personal obligation can be a ground for tenants eviction or such restrictive covenant is contrary to the provision of Section 12 (1) and 13 (1) (a) of the Rent Act. ( 9 ) SECTION 12 (1) of the Bombay Rent Act inter-alia provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act. It is not the case where possession was sought by the landlord on the ground of tenants default in payment of rent. On the other hand, possession has been sought on the ground that the tenant failed to perform other conditions of the tenancy specified in clause (5 ). However, if the conditions incorporated in clause (5) are found to be inconsistent with the provisions of this Act then the landlord will not be entitled to decree for possession. Inconsistency in the provision in the rent note or the agreement is to be examined in view of Section 13 (1) (a) of the Rent Act, which provides that landlord shall be entitled to recover possession of any premises if the court is satisfied that the tenant has committed any act contrary to the provisions of clause (O) of Section 108 of the Transfer of Property Act. Section 108 (O) of the Transfer of Property Act, inter-alia, provides that the lessee must not use, or permit another to use, the property for a purpose other than that for which it was leased. Section 108 (O) of the Transfer of Property Act, inter-alia, provides that the lessee must not use, or permit another to use, the property for a purpose other than that for which it was leased. In view of this provision it is clear that the revisionists committed breach of the terms of clause (5) of the Agreement and such breach of such clause in the Agreement is not inconsistent either with Section 12 (1) or 13 (1) (a) of the Rent Act or Section 108 (o) of the Transfer of Property Act. ( 10 ) LEARNED counsel for the revisionists contended that on the basis of theory of dual ownership, viz. ownership in the land vesting with the landlord and ownership in the super-structure raised by the revisionists vesting in them it cannot be said that if the revisionists permitted somebody to occupy super-structure it was contravention of the terms of tenancy. She further argued that clause (5) is in the nature of personal obligation and breach of personal obligation is not a ground for tenants eviction. She also argued that so long as the revisionists are the owners of super-structure they can use it in any manner they like and they can also sell it. I do not find any force in these contentions. There is no dispute that the super-structure is owned by the revisionists. It was raised within the ambit of the rent note and the Agreement between the landlord and the revisionist. The moment the revisionists are asked to vacate they have to deliver vacant possession of the land and they have right to remove the super-structure. The landlord can not claim ownership in the super-structure. But that does not mean that the tenants can transfer super-structure to any person. If such licence is given to the tenant then the super-structure, which cannot be seperated from the open land, can be transferred from generation to generation and the landlord will never be entitled to recover possession of the open land, no matter express terms of tenancy are violated by the tenant. I also do not find force in the contention that clause (5) of the Agreement is not arising out of the terms of tenancy. The cases cited by the learned Counsel for the revisionist on the point are distinguishable. The case of Dr. I also do not find force in the contention that clause (5) of the Agreement is not arising out of the terms of tenancy. The cases cited by the learned Counsel for the revisionist on the point are distinguishable. The case of Dr. K. A. Dhairyawan v/s. J. R. Thakur, reported in A. I. R. 1958 SC 789 is distinguishable on facts. In this case open land was let out. The lessee was permitted to raise permanent structures consisting of double storeyed building having shops on the ground floor and residential room on the first floor. Construction was to be insured in the joint name of lessor and the lessee. It was further stipulated that on termination of the lease or at the end of 21 years period of lease the demised premises including building with its fixtures, etc. were to be surrendered to the lessor without any compensation. In the case before me no such stipulation was introduced in the agreement that after termination of lease the super-structures were to be surrendered to the landlord. It was no where laid down by the Apex Court in this case that in such situation the tenant is entitled to sell or let out the super-structure raised on the demised land even without permission and consent of the landlord. Consequently this case is distinguishable on facts. ( 11 ) A plain reading of clause (5) of the Agreement will reveal that it necessarily related to mode of enjoyment of demised premises and it cannot be said that conditions were unconnected with the tenancy and were in the nature of personal obligation. How the demised premises was to be used by the tenant was incorporated in this para of the Agreement. It cannot be said that such stipulation had no connection with the mode of user of demised premises or with the terms of tenancy. The landlord simply granted concession to the tenants to raise their super-structure. They were free to remove the super-structure on their own cost after termination of tenancy, but they were not given any right to induct any person by way of assignment, transfer, etc. of the super structure. The landlord simply granted concession to the tenants to raise their super-structure. They were free to remove the super-structure on their own cost after termination of tenancy, but they were not given any right to induct any person by way of assignment, transfer, etc. of the super structure. This stipulation was necessarily a term of the contract of tenancy because the landlord could have never intended to give licence to the tenant to raise super-structure and then transfer it in any manner he likes to any person of his choice. That would have deprived the landlord permanently of his right to recover possession. ( 12 ) IN Kantilal Ishwerlal Shah V/s. Dr. Mukundrai Keshavlal Parikh, reported in XIV G. L. R. 227, the facts were that certain premise was let out to the tenant. There was a common passage to be used by the tenant as well as other tenants. There was stipulation in the agreement that the tenant was not entitled to store his goods over the common passage. The tenant committed breach of such term and he stored the goods on such common passage. It was held that breach of such condition would amount to the breach of terms of tenancy contemplated by Section 12 (1) of the Act and that the landlords right to recover possession is not confined to Section 13 (1) (a), but such right of possession flows from general law and the landlord is entitled to possession if there is breach of other conditions of the tenancy. It is, therefore, clear from this pronouncement that common passage which was not expressly let out to the tenant and that the tenant was granted right of common user of the passage was considered to be a matter arising out of the terms of tenancy and if there was contrary user to that contemplated in the agreement the tenant was liable to be evicted. In the case before me the land and super-structure cannot be seperated nor existence of super-structure without land can be apprehended. Thus, theory of dual ownership propounded by the learned Counsel for the revisionist does not help her. ( 13 ) THE case of Bhabhutmal Rikhbaji Sharma v/s. Manubhai Madhavji Patel reported in XXI G. L. R. 242 cited by the learned Counsel for the revisionist is also distinguishable on facts. In this case the tenancy was for business purposes. Thus, theory of dual ownership propounded by the learned Counsel for the revisionist does not help her. ( 13 ) THE case of Bhabhutmal Rikhbaji Sharma v/s. Manubhai Madhavji Patel reported in XXI G. L. R. 242 cited by the learned Counsel for the revisionist is also distinguishable on facts. In this case the tenancy was for business purposes. There was restrictive covenant that the premises shall be used for sale and purchase of utensils and utensils scrap and the tenant can not carry on any other business without written permission of the landlord. Stipulation that the tenant cannot be permitted to carry on other business without written permission of the landlord was considered in this case to be a negative obligation which is purely personal and collateral to the tenancy. No such restriction is imposed in the Agreement under consideration before me. ( 14 ) OTHER case cited by the learned Counsel for the revisionists, viz. Rabari Prabhatbhai Harjibhai v/s. Chandulal Trikamlal reported in 21 G. L. R. 734 is also distinguishable. In this case the rent note prohibited the tenant from making use of the adjacent land. Adjacent land was never given in the tenancy of the tenant. The tenant encroached upon adjacent land. It was held that such encroachment was in the nature of tres-pass for which seperate action in Civil Court can lie and the tenant cannot be said to have committed breach of terms of tenancy inasmuch as adjacent land was neither the subject matter of tenancy nor user of adjacent land was one of the modes of the user of tenanted accommodation. Such restrictive covenant with respect to adjoining land was certainly a personal prohibition to the tenant which could not be ground for tenants eviction. ( 15 ) ON the contrary in the case of Nathubhai v/s. Ramanlal, reported in 17 G. L. R. 468 the facts were that the tenant was to use electrical energy only for household purposes and it was not to be used for running a machine by motive power or in any other manner. The tenant committed breach of terms of tenancy and used motive power for running machine. The tenant committed breach of terms of tenancy and used motive power for running machine. It was held that the obligation undertaken by the tenant was not to use electrical energy for any other purpose other than the domestic purpose and the tenant had committed breach of that term of tenancy within the meaning of Section 12 (1) of the Bombay Rent Act, hence the tenant has lost statutory protection on account of non-observing and non-performing the condition of tenancy u/s. 12 (1) of the Bombay Rent Act. ( 16 ) IN view of aforesaid discussion I am of the view that the revisionists certainly committed breach of term of tenancy contained in clause : 5 of the Agreement and such breach is not in any way in contravention of Section 12 (1) and 13 (1) (a) of the Bombay Rent Act and Section 108 (o) of the Transfer of Property Act. The view taken by the lower Appellate Court is thus in accordance with law and requires no interference. There is thus no merit in this revision which is hereby dismissed. No order as to costs. .