ISHVERLAL THAKORELAL ALMAULA DECEASED AFTER HIM HIS HEIRS AND LEGAL REPRESENTATIVES Vs. MOTIBHAI NAGJIBHAI

JUDGEMENT

(1.) [On behalf of himself and Wanchoo J.] On June 18, 1939, Ishverlal Almaula-hereinafter called 'the appellant'-granted for agricultural purposes tenancy rights in land bearing Survey Nos. 52 and 158 at Kanbivaga in town of Broach to Nagjibhai father of the respondent, and since that date the land continued to remain in the possession of Nagjibhai and after his death of his son Motibhai. By letter dated November 2,1955 the appellant terminated the tenancy and called upon the respondent to deliver vacant possession of the land on March 31, 1956, and filed on April 4, 1956 Suit No. 180 of 1956 in the Court of the Civil Judge, Senior Division, at Broach for a decree in ejectment against the respondent and for mesne profits. The Civil Judge decreed the appellant's claim. In appeal the District Judge, Broach reversed the decree of the Trial Court and dismissed the suit. He held that in view of the proviso to sec. 43C incorporated in the Bombay Tenancy and Agricultural Lands Act 67 of 1948 by Bombay Act 13 of 1956, the respondent continued by virtue of the amendment by Act 13 of 1956 to remain a tenant, and the Civil Court had no jurisdiction to grant a decree for possession of the land in dispute. In reaching that conclusion the learned Judge followed the decision of the Bombay High Court in Patel Maganbhai Jethabhai v. Somabhai Sursang [(1958) 60 Bom. L. R. 1383]. A second appeal to the High Court of Bombay was dismissed summarily. With special leave, the appellant has appealed to this Court.

(2.) Counsel for the appellant raised two contentions in support of the appeal:

(3.) Facts which have a bearing on the questions raised in this appeal and the relevant statutory provisions may be briefly set out. The land in dispute is situate within the limits of the Broach Borough Municipality. Nagjibhai-father of the respondent and after his death the respondent were tenants of the land since June 1939, the tenancy being continued year after year under fresh agreements. Notice calling upon the respondent to vacate and deliver possession of the land on March 31, 1956 was given in terms of sec. 84 of the Bombay Land Revenue Code, 1879. The Bombay Tenancy Act 29 of 1939 was applied on April 11, 1946 to the area in which the land is situate, and the name of Nagjibhai was entered in the Record of Rights as a protected tenant under the Bombay Tenancy Act 29 of 1939 as amended by Bombay Act 26 of 1946. By the Bombay Tenancy and Agricultural Lands Act 67 of 1948, which was brought into force on December 28, 1948, the Bombay Tenancy Act 29 of 1939 stood repealed, subject to the reservation that Secs. 3, 3A and 4 of the repealed Act as modified by the Schedule to the repealing Act remained operative. The status of the respondent under the Bombay Tenancy Act 29 of 1939 remained, even after the repeal of that Act, protected by virtue of sec. 31 of Act 67 of 1948 as originally enacted.