The main legal principle established is that under Section 108(d) of the Transfer of Property Act, any accession by the lessee, including encroachment, must be surrendered to the lessor at the termination of the tenancy.

1. An interesting question on the rights and liabilities of lessor and lessee under Section 108 of the Transfer of Property Act, 1882 arises for consideration in the civil revision petition.

2. Under Section 108(d) it is stated that, "If during the continuance of the lease any accession is made to the property,such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease."

The question is: if the lessee encroaches upon adjoining land and enjoys such encroached portion, whether he must surrender such land to the lessor at the expiry of the term, irrespective of the land being waste land or land in the use of another.

3. In Mohd. Ahmed Amoliva v. Nirmal Chand Rai, AIR 1978 Calcutta 312 it has been held that,

"when a tenant encroaches on the land outside his tenancy, but belonging to his landlord, he cannot acquire absolute title thereto by adverse possession, but obtain only that right of tenancy under his landlord."

4. In Chapsibhai Dhanjibhai v. Purushottam, AIR 1971 SC 1878 : 1971(2) SCC 205 : 1971(1) SCR 761 it has been held by the Supreme Court that,

"under Section 108(d) of the Transfer of Property Act, if any accession is made to the leased property during the continuance of the lease, such accession is deemed to be comprised in the lease. If any accession is by encroachment by the lessee and the lessee acquires title thereto by prescription, he must surrender such accession together with the leased land to the lessor at the expiry of the term. The presumption is that the land so encroached; upon is added to the tenure and forms part thereof for the benefit of the tenant so long as the lease continues and afterwards for the benefit of the landlord."

5. In the present case, the question has arisen under the following circumstances: The revision petitioners were held to be entitled to the benefits of the City Tenants Protection Act and a decree was passed in their favour in C.T.O.P.No.36/86 on 4.9.1992. As per the terms of the decree, an area of 1136 sq.ft.was directed to be transferred to them by the respondents within two months therefrom, that the rest of the property was to be surrendered to the owners, namely, the respondents herein, that after transfer of the property within the stipulated period of two months, the respondents should make the necessary application for withdrawal of Rs.25730 in deposit to the credit of the proceedings.

6. On 15.1.1999 the first petitioner herein through her counsel, filed a memo before the lower Court stating that it would be enough if the extent of 1136 sq.ft.as per the four boundaries was sold to the petitioners, that the rest of the area on the eastern and the southern sides could be measured and taken possession of by the respondents and that the memo was being filed to show that the additional extent was being surrendered. Notice of memo was given on 15.10.1999 itself.

7. However, the respondents filed a petition in E.P.No.32/2001 stating that as per the memo they had not surrendered possession to the respondents and therefore, the E.P. was being filed for delivery of the vacant site. The execution petition was filed under Order 21 Rules 22 and 35. In the description of the property, besides giving the property immediately to the south of the property sold to the revision petitioners, some portion in S.No.78-B was also included. In that Survey Number, which appears to be property belonging to the municipality, the revision petitioners had constructed a toilet, bathroom and a septic tank.

8. Therevision petitioners contested the execution petition contending that the southern portion had already been taken possession of by the respondents, that they could not claim any right in S.No.78-B and that that was not the subject matter of the decree. According to them, the toilet, bathroom and the septic tank were constructed only in a strip of poramboke land and in as much as that poramboke land did not b