JUDGMENT:- The original plaintiffs have preferred this appeal against the judgment and decree passed by Sixth Additional District Judge Thane, in Civil Appeal No. 115 of 1986 on 30-10-1987, partly allowing the appeal against the judgment decree passed by Joint Civil Judge, J.D., Thane in Regular Civil Suit No. 314 of 1982 on 29-1-1986. The original defendant has filed cross objection.

2. The appellants instituted suit for ejectment and possession of the tenanted premises as well as encroached area.

3. The admitted facts are that the appellants are the owners of Field Survey No. 95, situated at village Majiwada, district Thane. The defendant/respondent was working as agricultural labourer with the appellants. Permission to construct hut in the said field was granted by the village Panchayat on 26-11-1957. The respondent was permitted to construct a hut and to reside therein as a tenant. Accordingly, the respondent erected a hut and started residing there as a tenant from 1-2-1964.

4. According to the appellants, the rent of the hut was Rs. 12/- per month, whereas according to the respondent the rent was Rs. 2/- per month. According to the appellants, the respondent stopped paying rent from 1-1-1974. The respondent also encroached upon certain land adjoining the hut. Hence, on 29-61981 the appellant issued notice to the respondent terminating his tenancy with effect from 31-7-1981. The appellants also called upon the respondent to vacate the encroached area. The said notice was replied by the respondent. Thereafter, the appellants instituted suit for arrears of rent from 1-2-1979 to 31-1-1982, ejectment and possession of the rented premises, as well as encroached area, under the provisions of Transfer of Property Act, against the respondent on 16-2-1982.

5. The respondent resisted the suit by his written statement. In para 9 of the written statement, the respondent submitted that the area of Majiwada Gram Panchayat has been included in the limits of Municipal Corporation, Thane after the institution of the suit and hence the provisions of Bombay Rent Act are applicable to the suit premises.

6. The respondent submitted that he was regular in payment of rent. He denied to have encroached upon any area. He disputed the area of the land leased out to him. According to him, the suit is liable to be dismissed.

7. The parties adduced oral as well as documentary evidence in support of their respective contentions. After considering the oral and documentary evidence, the trial Court held that the respondent is a tenant of the land admeasuring 20 X 20; that the rent was Rs. 12/- per month; that the respondent is in arrears of rent; that the respondent encroached on the area admeasuring 30 X 26; that the tenancy of the respondent has been terminated by legal and valid notice. The trial Court, therefore, decreed the suit in its entirety. The trial Court did not formulate issue about the jurisdiction of the Court.

8. In an Appeal preferred by the respondent, the Appellate Court held that the area of 20 X 20 was let out to the respondent; that the rent was Rs. 2/- per month; that the respondent encroached upon 6X 26area of land; that Bombay Rent Act was applicable to the rented premises as village Majiwade was incorporated in Municipal Corporation, Thane since 1-10-1982. However, the Court of Civil Judge, J.D. can try and decide the suit; that the respondent was not wilful defaulter and therefore the appellants were not entitled to evict the respondent. The Appellate Court, however, held that the appellants are entitled to possession of the encroached portion. The Appellate Court accordingly partly allowed the appeal.

9. The appellants have come up in Appeal against the said judgment and decree, as their claim for eviction of the respondent from the tenanted premises has been dismissed. The respondent filed cross objection, as decree for possession of encroached area has been passed against them. The respondent raised preliminary objection to

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