D. C. SRIVASTAVA, J.

( 1 ) THIS is tenants revision under Section 29 (2) of the Bombay Rent Act against concurrent judgment and decrees of the trial Court and the lower Appellate Court.

( 2 ) BRIEF facts are that the revisionist, who was admittedly tenant of the respondent in the disputed premises, filed Suit for declaration and permanent injunction that the landlord - respondent had no right to raise construction in a portion of the tenanted accommodation known as "deli". The deli is nothing but open land enclosed by boundry wall or some other temporary structure. The landlord purchased the said premises from the previous owner. The landlord intended to raise construction over the deli portion. The tenant revisionist apprehended that the landlord will encroach upon his tenancy right hence he filed Suit for declaration that it be declared that the deli portion is in his tenancy and further sought injunction that the landlord be restrained from raising construction over Deli portion.

( 3 ) THE landlord respondent contested the Suit on the ground that all the allegations made by the tenant revisionist were incorrect and false and that the deli portion was not in the tenancy of the tenant.

( 4 ) THE trial Court found that the deli portion was not in the tenancy of the revisionist. Still as a matter of concession, in order to facilitate the tenant to use the tenanted accommodation in a beneficial manner, he was given permission to use 5 ft. wide strip of land from deli portion. According to the tenant revisionist the width of deli portion was about 11 ft. whereas according to the landlord respondent its width was 16 ft.

( 5 ) FEELING aggrieved the tenant revisionist preferred Appeal. The Appellate Court found that the deli portion was in use and occupation of the tenant revisionist since inception of tenancy. Relying upon the definition of premise contained in Section 5 (8) (b) (i) it found that since deli was used for beneficial enjoyment of the tenanted portion inasmuch there could be no other portion to reach the staircase and the tenanted portion of the disputed accommodation, 5 ft. land from this deli portion was permitted to be used and the landlord was granted permission to raise construction over the remaining portion of the deli land whether it was 11 ft. or 16 ft. wide in all. Feeling aggrieved the tenant has preferred this revision.

( 6 ) LEARNED Counsel for the parties have been heard and the Judgments under challenge have been examined. For all purpose it is a case of concurrent findings recorded by the two courts below. Consequently the scope of interference in this revision is limited.

( 7 ) SHRI M. S. Shah for the revisionist, however, contended that there is patent error and illegality in the Judgment of the lower Appellate Court inasmuch as it has misread the provisions of Section 13 (A) of the Bombay Rent Act and has wrongly held that no application under this section is required to be moved by the landlord. According to him application u/s. 13 (A) was necessarily required to be moved by the landlord in case he found that the tenant was not permitting him to raise construction and structures in the nature of additional construction or the structure in the demised portion. He further contended that no issue on this point was framed by the trial Court whether the permission can be granted u/s. 13 (A) of the Rent Act to the landlord or not and in the absence of issue on the point the matter could not be agitated for the first time in Appeal during argument. If it was so raised for the first time in the course of argument in Appeal, according to Shri Shah, the findings of the trial Court could not be said to be contrary to law by the Appellate Court and that the Judgment of the lower Appellate Court deserves to be set aside.

( 8 ) THE first question, therefore, which arise for consideration, is whether a seperate application by the landlord u/s. 13 (A) of the Rent Act was necessary or not. The Appellate Court despite

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