( 1. ) THIS is an appeal by a tenant Kikabhai against whom there is a decree for ejectment as well as for arrears of rent and mesne profits. The ejectment has been sought from an open piece of land. Its old Municipal no. 1 was divided into different numbers as 34, 35, 36, 37 and 38. The land in tenancy measures 1586" towards North; 156 towards South; 849" towards East and 286" towards the West. The tenanted portion also included a guest house with a compound and motor garage measuring 783 square feet in area. The portion actually in occupation of the defendant as a tenant has been shown in the map Ex. P/9 bounded by red-lines and marked as A and B.

( 2. ) THE plaintiffs allege that the defendant was a tenant of the premises before 1-7-1950. But at that time the portion in his occupation was much more than the present portion in suit. On 30-6-1950 the defendant surrendered all other portions excepting the suit portion for which the defendant agreed to pay rent Rs. 205 per month, The lease was for a period often years. The lease deed was executed and registered on 28 9-1930. After that the defendant surrendered some more portion and the rent was therefore reduced to Rs. 190 per month.

( 3. ) THE plaintiffs further allege that the premises were taken by the defendant for the purpose of running a foundry and for no other purpose. The guest house which forms part of the tenancy has been in a dangerous condition and unsuitable for residence. That the defendant had sub-leased the portions of the suit land. That the suit land was being used for the purpose different from that for which it was let out. The plaintiffs also wanted the land for constructing their own house. After giving a notice and determining the tenancy the plaintiffs brought a suit for ejectment. The plaintiffs claimed mesne profits at the rate of Rs. 1,800 per month from the date of determination of the tenancy till the date of recovery of possession.

( 4. ) THE defendant in reply contended that the tenancy started from 1-10-1950 and not from 1-7-1950. Therefore the notice determining the tenancy was not valid. While denying the claim of the plaintiffs, he contended that he is not liable to be ejected for any of the grounds claimed by the plaintiffs. It was averred that from the very beginning there had been subtenants in the suit premises in consequence of which the defendant was entitled to sub-let the same. There was a waiver on behalf of the plaintiffs about the sub-letting and therefore there was an implied consent in this respect. He denied that the plaintiffs are entitled to any mesne profits and in any case not at the rate claimed by them. According to him after the determination of the tenancy on 30-9- 1960 a new tenancy came into existence by operation of law and as the plaintiffs had not determined that tenancy, the defendant is not liable to be ejected.

( 5. ) A number of issues were framed. The trial Court held that the defendant shall give possession of the suit land to the plaintiffs within a period of 3 months from 30-4-1963. The defendants shall pay a sum of Rs. 10,820 as damages for use and occupation for a period from 1-7-1960 upto the date of decree after allowing deduction of Rs. 4. 850 received by the plaintiffs from the defendant, subject to plaintiffs paying court-fee on a sum of Rs. 2,820. The trial Court further held that the plaintiffs shall get damages after the date of decree at Rs. 455 per month till the date of recovery of the suit land.

( 6. ) AGAINST the above decree the defendant-has now come up in appeal. The plaintiffs have filed cross objection claiming mesne profits at the rate of rs. 1,800 per month.

( 7. ) BEFORE us the learned counsel for the appellant has not challenged the findings of the trial Court on some of the issues. He did not challenge the partition between the members of the joint Hindu family of late Dr. Narayan-rao as a result of which the suit land fell to the shares of the plaintiffs. He also did not dispute