Judgment K. A. PUJ, J. The petitioners-original defendants have filed this Civil Revision Application under Sec. 29(2) of the Bombay Rents, Hotel & Lodging Rates Control Act, 1947 challenging the judgment and order dated 14-5-2010 passed by the Appellate Bench of the Small Causes Court, Ahmedabad in Civil Appeal No. 69 of 2008 confirming the judgment and decree passed by the Small Causes Court No.6, Ahmedabad on 25-3-2008 in H.R.P. Suit No. 372 of 2005. 2. Heard Mr. S. P. Majmudar, learned Advocate appearing for the petitioners and Mr. P. C. Kavina, learned Senior Counsel appearing with Mr. Rahul K. Pandya for the respondents on caveat. With the consent of the parties, the matter is taken up for final hearing even at admission stage. 3. The brief facts giving rise to the present Civil Revision Application are that the petitioners are the original defendants of H.R.P: Suit No. 372 of 2005 which was instituted by the respondent under the provisions of the Bombay Rent Act. The suit was filed on the ground that the petitioners are not using the suit premises for personal use, and hence, the respondent is entitled to get the possession of the suit premises. It was also alleged in the suit that the original defendants transferreci the suit premises to his son, who is not a tenant. It was further alleged that the defendant has put benches on the open plot and is allowing his customers to sit on the open land which causes nuisance. The said suit was initially filed against the father of the present petitioners i.e. Sakarbhai Patel who has since been expired. On service of the summons in the suit, the appearance was filed on behalf of the petitioners and written statement was filed denying the averments made in the suit. It was stated that there was no breach of any condition of the rent note and from inception, the petitioners were allowed to use front side of the suit premises. The suit premises had not been handed over to the son of the original defendants or there is no nuisance or annoyance. Reliance was also placed by the defendants upon the judgment and order passed by the Small Causes Court in H.R.P. Suit No. 1123 of 1993 whereby the suit of the respondent-original plaintiff for possession, inter alia, on the ground of arrears of rent was dismissed. Reliance was also placed by the defendants upon the judgment and order passed by the Small Causes Court in H.R.P. Suit No. 1123 of 1993 whereby the suit of the respondent-original plaintiff for possession, inter alia, on the ground of arrears of rent was dismissed. The said judgment and order had become final between the parties on the issue of arrears of rent. An agreement dated 4-7-1975 with respect to construction and rent was entered into and reliance was placed by the defendants on the said agreement while defending the suit. In the previous suit, panch nama was made and Commissioner's report was also made. In the cross-examination, the defendants had contended that an agreement dated 6-3-1975 was also entered into between the parties and both the agreements are required to be read together. The Small Causes Court, Ahmedabad vide its judgment and decree dated 25-3-2008 allowed the suit filed by the original plaintiff. 4. Being aggrieved by the said judgment and decree, the petitioners preferred an appeal being Civil Appeal No. 169 of 2008 which came to be dismissed by the Appellate Bench of the Small Causes Court, Ahmedabad on 14-5-2010. 5. It is these orders which are under challenge in the present Civil Revision Application. 6. Mr. S. P. Majmudar, learned Advocate appearing for thy petitioners has submitted that the agreement for construction and rent note has been executed between the parties and both the parties are bound by the terms and conditions of the said agreements. Just merely making fence on both the sides i.e. north and south would not create any nuisance and annoyance. The fact that the gate was permitted to be installed itself was indicative of the fact that there was already a fencing existing as without the same, it would not have been possible to install the gate. He has further submitted that by virtue of agreement of construction, the petitioners had used the premises and the land and there was no breach of terms of any tenancy. By entering into contract of construction, the original owner of the suit premises had given permission to construct garage on the land to the petitioners. Thus, the petitioners were in the exclusive possession of the marginal land with the permission of the landlady since inception of the tenancy. By entering into contract of construction, the original owner of the suit premises had given permission to construct garage on the land to the petitioners. Thus, the petitioners were in the exclusive possession of the marginal land with the permission of the landlady since inception of the tenancy. He has further submitted that the construction was put up by the petitioners at their own cost, and hence, the original plaintiff had permitted the tenants to utilise the suit premises on their own way. 7. Mr. Majmudar has further submitted that in the prior H.R.P. Suit No. 1123 of 1993, the Court Commissioner was appointed and panchnama was drawn by him in which it was found that there was no illegal encroachment made by the tenants. Even fencing was existing at the relevant point of time. A map was also prepared to that effect, and at that time, no objection was taken to the fencing existing at the relevant point of time by the original plaintiff. Thus, the present suit was barred b)1 the provisions of Order XI, Rule 2 of the Code of Civil Procedure and principles of constructive res judicata, estoppel and acquiescence. In the previous suit, in the deposition, the original plaintiff had clearly stated that she has permitted the tenant to use the open land. adjacent to the premises. Both the Courts have not properly appreciated certain documents made by the original plaintiff in her cross-examination in the previous suit. He has further submitted that the open land is an appurtenant land from which the tenants are permitted to ingress and outgress, which is clear from the rent note and agreement entered into between the parties. Moreover, in the examination-in-chief, in the present suit, the original plaintiff has admitted that the land in question is appurtenant land. Both the Courts have not properly appreciated and interpreted the aspect of appurtenant land as defined under the Bombay Rent Act and as interpreted by this Court as well as by the Apex Court. In earlier suit, an issue was framed that whether the let out premises was not only the constructed portion but also the margin land and the said issue was decided in favour of the petitioners holding that the constructed premises as described in the plaint and 15 feet open land which is the appurtenant land is let out to the petitioners. Thus, the finding given in the earlier suit between the same parties was not challenged before the higher forum, and had therefore, become final and is binding between the parties. Both the Courts below, have therefore, committed an error of law by not taking into consideration the said finding given in earlier suit between the same parties. 8. Mr. Majmudar has further submitted that no nuisance or annoyance was caused by the petitioners by using the margin land. In any case, the said land was being exclusively used by the petitioners. The trial Court has held that the open land is also a tenanted premises and it is the right of the tenant in order to safeguard the said premises to put lock over the gate. This would not amount to causing any nuisance or annoyance since this was not a case of co-user of the land in question but it was the question of exclusive use of the open land by the tenants as permitted by the landlord. He has, therefore, submitted that the lower Appellate Court has gone beyond the issues framed by the trial Court and has given findings on aspects which were not even pleaded by the original plaintiff, more particularly, with regard to the aspect of fencing put up by the petitioners. He has, therefore, submitted that the impugned judgments and orders passed by the Courts below are required to be quashed and set aside and this Civil Revision Application deserves to be allowed. 9. Mr. P. C. Kavina, learned Senior Counsel appearing for the respondent-original plaintiff, on the other hand, has submitted that both the Courts have given concurrent finding which cannot be interfered with by this Court while exercising its revisional jurisdiction under Sec. 29(2) of the Bombay Rent Act. He has further submitted that as per agreement Exhs. 33, the defendants have no right to use the open land. They have also no right to make the construction on it and they have only right to use it for egress and ingress. It is nowhere mentioned in the agreement that open land was rented to the defendants. Exhs. 32 and 33 are required to be read together and Exh. 33 cannot travel beyond Exh. 32.. They have also no right to make the construction on it and they have only right to use it for egress and ingress. It is nowhere mentioned in the agreement that open land was rented to the defendants. Exhs. 32 and 33 are required to be read together and Exh. 33 cannot travel beyond Exh. 32.. The defendant is not given any right to put fencing on two sides or to put lock on the main gate or to prevent the plaintiff from using that open land. If the defendant is doing all these things, then it is nothing but breach of condition of the contract entered into between the parties. He has further submitted that the photographs were produced by the plaintiff which clearly prove that the fencing is put in such a way that no one can enter into the passage and this open land cannot be used by the defendant is borne out from the agreement. He has, therefore, submitted that the decree was rightly passed by the trial Court for breach of terms of tenancy and for nuisance. He has further submitted that putting up fencing and putting the lock is nothing but encroachment in margin land, excluding the plaintiff from using the open land. 10. Mr. Kavina in support of his submission has relied on the judgment of this Court in the case of Kamlaben Naginbhai Patel v. Bulchand Narumal, 1993 (2) GLR 1083 wherein it is held that the word 'appurtenant' has diverse meanings depending upon the context in which it is so used. The portion of land which is closely connected with the building may be included as part and parcel of demised premises but entire open parcel of land cannot be called 'appurtenant'. Tenant cannot obstruct the landlord from making construction on the open parcel of land which is not 'appurtenant' to the demised premises. 11. He further relied on the decision of this Court in the case of Smt. Laxmiben Mavjibhai v. Shankarbhai Mulubhai, 1997 (2) GLR 1320 wherein decree of eviction on the ground of conduct of the tenant causing nuisance or annoyance was passed. The tenant was not leased out the osri, parsal or backyard and was not entitled to use the same. He further relied on the decision of this Court in the case of Smt. Laxmiben Mavjibhai v. Shankarbhai Mulubhai, 1997 (2) GLR 1320 wherein decree of eviction on the ground of conduct of the tenant causing nuisance or annoyance was passed. The tenant was not leased out the osri, parsal or backyard and was not entitled to use the same. In spite of this, the tenant used this portions by placing his charpai (cot) for sleeping purpose, by storing his goods, keeping water heater and burning wooden pieces or cow dung cakes. This act of the tenant was held as nuisance and annoyance. 12. Mr. Kavina further relied on the decision of the Apex Court in the case of Patel Chandulal Trikamlal v. Rabri Prabhat Harji, AIR 1996 SC 532 wherein part of land was demised for keeping grazing cattle. Rent note contains the terms of which states that the tenant has measured the land and he will not use the land lying beyond said limits and he will put up wire fencing demarcating demised land. Term constitutes' condition of tenancy and not personal obligation of tenant. It is an obligation on him cast in his capacity as tenant. The Court held that the tenant committed breach of term and encroached upon adjacent land of landlord and he is liable for eviction. 13. Mr. Kavina has further submitted that the petitioners have for the first time raised the plea of res judicata and/or waiver which was not raised in the written statement nor during the hearing of Civil Appeal No. 169 of 2008. The petitioners have also not led any evidence on this issue. The petitioners' Advocate did not argue this issue in the appeal. He has, therefore, submitted that it is not open to the petitioners to raise such plea for the first time before this Court exercising the jurisdiction under Sec. 29(2) of the Bombay Rent Act. It is settled legal position that the plea of waiver must be specifically raised in the pleadings. If it is not raised, it cannot be allowed at the time of hearing. It is settled legal position that the plea of waiver must be specifically raised in the pleadings. If it is not raised, it cannot be allowed at the time of hearing. Reliance is placed on the decision of the Apex Court in the case of M/s. Motilal Padampat Sugar Mills Company Limited v. State of Andhra Pradesh, AIR 1979 SC 621 and in the case of Associated Hotels of India Limited v. S. B. Sardar Ranjit Singh, AIR 1968 SC 933 . 14. Mr. Kavina has further submitted that the waiver is an intentional relinquishment of a known right. If the issue regarding waiver was not raised and if no evidence is led on the same, it is not open to the petitioners to raise such issue for the first time before this Court. He has further submitted that the plea of res judicata is a mixed issue of law and facts and particularly the issue of constructive res judicata is one such mixed question of fact and law. Such issue cannot be allowed to be raised for the first time at the hearing before this Court. In support of this submission, he relied on the decision of the Apex Court in the case of Madhukar D. Shende v. Tarabai Aba Shedage, 2002 (2) SCC 85 . The plea as to res judicata when not taken into trial Court and first Appellate Court by raising necessary pleadings, it cannot be allowed to be raised for the first time before the High Court. Reliance is placed on the decision of the Apex Court in the case of V. Rajeshwari (Smt.) v. T. C. Saravanabava, 2004 (1) SCC 551 . 15. Mr. Kavina has further submitted that the principle of waiver, although is akin to the principle of estoppel, the difference between the two, however, is that whereas the estoppel is not a cause of action, it is a rule of evidence. Waiver is contractual and may constitute a cause of action. It is an agreement between the parties and a party fully knowing of its right has agreed not to assert a right for consideration. Reliance is placed on the decision of the Apex Court in the case of Krishna Bahadur v. Puma Theater, AIR 2004 SC 4282 . 16. Mr. Waiver is contractual and may constitute a cause of action. It is an agreement between the parties and a party fully knowing of its right has agreed not to assert a right for consideration. Reliance is placed on the decision of the Apex Court in the case of Krishna Bahadur v. Puma Theater, AIR 2004 SC 4282 . 16. Mr. Kavina has further submitted that in the case of Martin and Harris Limited v. Central Additional District Judge, AIR .1998 SC 492, the appeal was filed against the order of eviction on the ground that the suit was filed before expiry of six months from the date of the notice. Although, the tenant was aware about the same, he never challenged the maintainability of the suit on such ground, either at the trial stage or at the time of appeal. It was held that the tenant must be deemed to have waived the challenge on such ground. In the case of Bai Hariben Ambashanker Wd/o. Ambashanker Dhanjibhai v. Shantilal Jadavji Shah, 1997 (2) GLR 1108 , the plea of estoppel or waiver was not accepted by this Court. In Paragraph 15 of the judgment, this Court has stated that the waiver is a matter of intention and mere delay in raising the objection would not justify an inference of waiver. 17. Mr. Kavina has further submitted that even if the petitioners are allowed to raise the plea of res judicata and/or waiver for the first time before this Court in the present Civil Revision Application, such plea is not maintainable on the facts emerging from the record. He has submitted that in order to establish this proposition, mere comparison of the two Commissioner's report is enough. The first Commissioner's report was made in H.R.P. Suit No. 1123 of 1993 and the second Commissioner's report was in H.R.P. Suit No. 372 of 2005. From such comparison, it becomes clear that the cause of action for H.R.P. Suit No. 372 of 2005 on the ground of breach of terms and conditions of tenancy is entirely different and has arisen only at a later stage. The first Commissioner's report clearly shows that there was no item lying in the margin land such as benches, bricks, buckets, garden containers/flour tins, pakka flooring etc. The first Commissioner's report clearly shows that there was no item lying in the margin land such as benches, bricks, buckets, garden containers/flour tins, pakka flooring etc. A note is prepared showing the difference between the two Commissioner's report in both the suits and the same is placed on record. From such comparison, it is clear that the petitioners committed breach of the tenancy at a later stage, and consequently, the causes of action for both the suits were different and there is no plea of res judicata or waiver available to the petitioners. The plea raised by the respondents for breach of terms and conditions of tenancy in the second suit was not factually available to the plaintiff at the time of filing the first suit. Hence, the question of res judicata or waiver does not arise at all. He has, therefore, submitted that the Civil Revision Application deserves to be dismissed with cost. 18. Having heard the learned Counsels appearing for the parties and having considered the rival submissions in light of the statutory provisions and decided case-law on the subject and having minutely gone through the findings recorded by the Courts below after appreciating the evidence - oral as well as documentary - on record, the Court is of the view that both the Courts below have recorded concurrent finding to the effect that the appellants/original defendants have committed breach of tenancy agreements and they have also caused nuisance and annoyance to the respondent/original plaintiff, and therefore, they are liable to be evicted from the suit premises. The Court does not find any infirmity or illegality in the finding so arrived at by the Courts below, and hence, considering the limited scope of revisional powers of this Court under Sec. 29(2) of the Bombay Rent Act, no interference is called for in the judgments and decrees passed by the Courts below and accordingly, this Civil Revision Application deserve to be rejected. 19. 19. Though, the suit is filed mainly on 3 counts namely, first is that in open land, tenant had started doing his business; second is that the tenant has stopped using the suit premises for his own business and not using for the last more than six months before filing of the suit; and third is that the tenant had started using open land by putting business articles in it and have started doing cleaning grains in that open land by allowing his workers by which he has made nuisance and annoyance. The learned Judge of the Small Cause Court has passed the decree on the ground that plaintiff has proved that the defendants have committed breach of the terms of tenancy and that the plaintiff has already proved that defendants are causing nuisance and annoyance by using the margin land, and hence, the plaintiff was entitled to get vacant and peaceful possession of the suit premises. This finding of the learned Judge of the Small Cause Court was confirmed by the Appellate Bench of the Small Causes Court. 20. Before examining the correctness of this finding of the Courts below and/or deciding the legality and validity of the judgments and decrees passed by the Courts below, it is necessary to have a close look at the statutory provisions contained in the Bombay Rent Act. Section 12 (1) states 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, insofar as they are consistent with the provisions of this Act." If the tenant fails to observe and perform the other conditions of the tenancy and those conditions are consistent with the provisions of these Acts, the tenant is liable to be evicted from the suit premises. It is alleged by the plaintiff in the suit that the defendant was using the 15 feet open land in front of suit garage for his business purpose. He has started putting bags of wheat, millet, and grains. He was allowing to sit men for cleaning those grains in that open land. He has also put benches in that open land and also putting the business articles over there. He has started putting bags of wheat, millet, and grains. He was allowing to sit men for cleaning those grains in that open land. He has also put benches in that open land and also putting the business articles over there. He has also constructed the wall in front of this 15 feet open land and has affixed the gate in it. He was also putting his lock on that gate and keeping the key with him. He was allowing his customer and other persons to sit in that open land and those customers were using the plaintiff's compound for passage purpose. By doing all these acts he has not only committed breach of the tenancy agreement, but he has also caused nuisance and annoyance to the plaintiff. The learned trial Judge of the Small Cause Court after appreciating the evidence on record and after considering the statutory provisions of the Act and the judgments cited before him has observed that in front of the suit premises there is 15 feet margin land which the tenant has to use as open and no construction can be made. He has further observed that there is no clause like tenant can use it exclusively. There is also no condition that tenant can use it for his business purpose and the defendants have, by covering the open land of 15 feet and by putting two sides fencing and the gate in front of it and using it as if, they have right to use it exclusively, is nothing but breach of rent note. The learned trial Judge of the Small Cause Court, has therefore, come to the conclusion that the plaintiff has proved the breach of terms of the tenancy. The Appellate Bench of the Small Cause Court has also discussed this issue in great detail and after considering Exhs. 32 and 33, observed that Exh. 32 is an agreement of construction-cum-rent note. Clause-l in the said agreement is very clear, particularly land situated on Eastern side of the bungalow as marginal land, the description of which is very clear. It is North - South 5.1 sq. mts. and east-west 3.74 sq.mts. which was handed over to the tenant for the purpose of making construction for garage. This agreement was very clear and height and width of walls are also properly specified. It is North - South 5.1 sq. mts. and east-west 3.74 sq.mts. which was handed over to the tenant for the purpose of making construction for garage. This agreement was very clear and height and width of walls are also properly specified. By virtue of Clause 11 of the agreement, the tenant was permitted to put gate only for the purpose of egress and ingress in the suit premises and he was .restricted from utilizing this open land. The tenant was only permitted to use this open land for the purpose of egress and ingress. In cross-examination of the tenant at Exh. 61, he has admitted that land situated in front of the shop let out to him is open to sky. On North-South, both sides the tenant has made fencing and also put a gate on Eastern side of said fencing. Key of the gate remains with him and he further admitted that no key remained with the landlord, which shows and proves that by putting lock and keeping key with him the tenant has restricted the landlord from enjoying this open land. He has also admitted in his deposition that the landlord cannot enter on this open land unless and until he has having key of the said lock. This clearly shows that by making fencing, the tenant has covered the open land which is situated in front of the shop. The plea of the tenant regarding the land being appurtenant to the demised land was also not found favour with the Appellate Bench of the Small Causes Court. Both the Courts below, therefore, have come to a specific finding that an act of making fencing and curtailing right to use land by landlord is itself violative to the provisions of the rent note. 21. The argument of Mr. Majmudar is that this issue was decided to some extent in earlier suit being H.R.P. Suit No. 1123 of 1993, and since it has become final, the respondent landlord is prevented from raising this issue in the subsequent suit by virtue of the principle of constructive res judicata. This argument was raised for the first time before this Court in Civil Revision Application and as per settled legal position, it is not permissible to raise this issue, if it is not raised before the Courts below. A catena of judgments has been cited by Mr. This argument was raised for the first time before this Court in Civil Revision Application and as per settled legal position, it is not permissible to raise this issue, if it is not raised before the Courts below. A catena of judgments has been cited by Mr. Kavina, learned Senior Advocate appearing for the respondent/plaintiff. It is repeatedly held by the Courts that the plea of waiver must be specifically raised in the pleadings and if it is not raised, it cannot be allowed at the time of hearing. It is also held by the Courts that a plea of res judicata is a mixed question of law and facts, more particularly the issue of constructive res judicata is one such mixed question of fact and law, such an issue Cannot be allowed to be raised at a time of hearing before the Court. 22. The Court finds some substance in the submission of Mr. Kavina that even if a plea of res judicata and/or waiver is allowed to be raised before this Court, the same is not maintainable on the facts emerging from the record. The facts are different and the situation was also different in the earlier suit as well as in the present suit. The plea raised by the respondent/plaintiff for breach of terms and conditions of the tenancy in the Second Appeal was not factually available to the respondent/plaintiff at a time of filing of first suit. Hence, no interference is called for so far as, the finding recorded by the Courts below regarding breach of tenancy agreement is concerned. 23. So far as, the second issue in relation to the act of the tenant causing nuisance and annoyance to the landlord is concerned, Sec. 13(1)(c) is relevant. It says that, "the landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant or any person residing with the tenant, has been guilty of conduct which is a nuisance or annoyance to the adjoining or neighboring occupier, or has been convicted or using the premises or allowing the premises to be used for immoral or illegal purposes." The first part of Sec. l3(1)(c) is relevant for the purpose of deciding the issue arose before this Court. The learned Judge of the Small Cause Court after framing the issue as to whether the plaintiff prove that the defendant is causing nuisance and annoyance by using marginal land as alleged in the plaint, has observed that the tenant was allowed to use only the suit premises to run his business and when he started using the open land exclusively for his business purpose and when neighbouring occupier is the owner himself it does cause nuisance and annoyance to the owner also. The Appellate Bench has more elaborately discussed this issue by putting fencing on both sides of the open land and by putting gate, the tenant has covered the open land where he has put benches. Court Commissioner's report reflects that there are tin box and also found pukka construction by sand and cement. The tenant also put lock on the gate. The tenant has admitted in his cross-examination that he kept gate closed and key remains with him. The landlord cannot enter without opening that gate. By adopting this method, the tenant has curtailed the landlord's right to use the property. The landlord has submitted that tenant and their persons by playing tape-recorder and radio with full volume cause nuisance. The tenant allowed the persons to sit on that place, and hence, the family members of the landlord felt inconvenience to move freely on that land and they could not enjoy their right to move freely on the property. Thus, the plea of causing nuisance and annoyance to the landlord is also established and both the Courts below have given their concurrent finding on this issue. There is no reason for this Court to disturb the said finding of facts. 24. Considering the entire facts and circumstances of the case and further considering the legal position as well as the evidence found on record, this Court is of the view that both the Courts below have correctly decided the controversy raised before them and direction issued to the tenant to hand over the vacant possession to the landlord on the ground of breach of condition of tenancy agreement and causing nuisance and annoyance to the owner is not required to be interfered with. 25. This Civil Revision Application is accordingly rejected. Parties will bear their own costs. 26. On pronouncement of the judgment, Mr. 25. This Civil Revision Application is accordingly rejected. Parties will bear their own costs. 26. On pronouncement of the judgment, Mr. S. P. Majmudar, learned Advocate appearing for the petitioner requests to stay the implementation of this judgment for a period of three weeks from today so as to enable the petitioner to approach the Apex Court. Mr. P. C. Kavina, learned Senior Advocate appearing for the respondents has vehemently objected to grant any stay. 27. Considering the facts and circumstances of the case and since the stay was granted by the lower Court for approaching this Court, the implementation of this judgment is stayed for a period of three weeks from today. (SBS) Application rejected.