M. Ananthanarayanan, C.J.
1. For evicting the tenant under Section 3(2) of the Madras Cultivating Tenants' Protection Act XXV of 1955, the landlady relied on two grounds. The first was that the tenant (Revision Petitioner) was in arrears for two faslis, the total value of the waram amounting to over Rs. 800. The second point was the interesting one that the tenant (Revision Petitioner) permitted a neighbouring cultivator or landowner to encroach on the holding and to cultivate a portion thereof. According to the landlady, this amounts to an act of 'any negligence which is destructive of, or injurious to, the land' within the meaning of Section 3(2)(b). It also amounts, by implication, to wilful denial of title of the landlady to the land within the meaning of Section 3(2)(d). The learned Revenue Divisional Officer upheld this contention and ordered eviction.
2. As regards the second ground, I am afraid that the order of the Revenue Court is not sustainable. Where a cultivating tenant permits another person to encroach on the land, which encroachment as in this case, was discovered by means of a survey at the instance of the landlady, it is very difficult to hold that the tenant is guilty of some negligence, which is destructive of the land or injurious to the land. In such a case, it may well be that the tenant was really unaware that the holding was being encroached on. In any event, it would be grotesque to apply Section 3(2)(d) to such a case, as amounting to a wilful denial of the title of the landlady by implication. The word 'wilful' means deliberate or volitional, and cannot be equivalent to the consequence of mere ignorance/passivity on the part of the tenant. At the highest, it may amount to cessation of cultivation over a part of the holding but, on this aspect, the record throws no light.
3. Under the circumstances, I must certainly reject this alleged ground of eviction.
4. The ground of default in payment of rent certainly stands. But the revenue Court, admittedly, has a discretion under Section 3(4)(b) to grant further time for payment of rent in such cases. This is a discretion that ought to be exercised and, though the Court is not bound to grant time, it is bound to apply the judicial mind to the question whether the tenant should not have further time for payment of arrears. In the present case, it is claimed that the arrears were paid during the pendency of the revision.
5. Under the circumstances, the revision is allowed to the extent of negativing the first ground that I have already referred to, setting aside the order of eviction and remitting the petition back to the Revenue Court for disposal of the second ground. If the Revenue Court thinks that the delay can be condoned, the cultivating tenant is certainly entitled to continue in possession of the holding without eviction. No order as to costs.