BAI PREMBAI ZAVER Vs. KOLI TAPUR RATNA

JUDGEMENT

(1.) This Special Civil Application and the second Appeal which are directed to be heard together arise in circumstances to be immediately stated. The petitioners in Special Civil Application are the appellants in the Second Appeal and they are occupants of agricultural lands admeasuring acres 65 and 10 gunthas situated in the village Kantasar. The lands were leased out by them to opponent No. 1 to the Special Civil Application Koli Tapur Ratna under a lease for a period of eight years. About a month before the due date for the expiry of the lease the petitioners gave a notice to opponent No. 1 calling upon him to land over possession of the lands on the expiry of the lease by efflux of time. The lease expired on 8/12/1953. Opponent No. 1 refused to hand over possession of the lands and the petitioners filed a suit for eviction in the Court of the Civil Judge at Mahuva. Various contentions were raised in that suit by opponent No. 1. He contended that he had been in possession of the lands for 21 years. That was not believed by the learned Judge in the trial Court who on evidence reached the conclusion that opponent No. 1 had been put in possession of the lands by the petitioners themselves. He also contended that he had been in possession of the lands in part performance of a contract for sale. That contention also was rejected by the trial Court. The trial Court also held that opponent No. 1 tenant had denied the title of the petitioners and had forfeited his right as tenant. It determined the suit in favour of petitioners and passed a decree for possession in their favour. The opponent-tenant preferred an appeal against that judgment. At the hearing of the appeal before the learned District Judge Gohilwad District the advocate for the opponent-tenant urged only one contention and that was a new contention. It was urged that the suit for eviction was filed after the coming into force of the Prohibition of Leases Act 1953 The lease was not registered by the petitioners and therefore the contention proceeded no decree could be passed in favour of the petitioners. In his judgment the learned District Judge has stated that although the point was a new one he allowed it to be raised. One of the arguments urged before us by Mr. Hathi who appears for the petitioners is that the learned Judge was in error in allowing the new contention to be raised. The question has all along been treated as one of law and no objection appears to have been raised before the District Judge that any facts were involved. In our opinion the learned District Judge was not in error in allowing the new contention of law being raised for the first time at the hearing of the appeal before him.

(2.) The contention of law raised before him was rather ingenious but devoid of any real substance. It was urged that sec. 4(1) of the Saurashtra Prohibition of Lease of Agricultural Lands Act made it incumbent upon every occupant of the land who had leased his occupancy prior to the coming into force of the Act to get it registered and if the lease was not registered section 4(2) would come into operation and the unregistered lease would not be recognised as such and the provisions of section 6 would apply to such lease is if it were granted in contravention of sec. 5. In order to appreciate the contention raised before the learned Judge and which found favour with him it will be convenient to set out certain relevant provisions of the Saurashtra Prohibition of Leases of Agricultural Lands Act 1953.

(3.) In the penultimate part of his judgment the leaned District Judge observed that it was unfortunate that two illiterate women should be prevented from being restored to the lands which they had got from their mother and that the tenant did not deserve the resultant benefit of continuing in possession. He pointed out that it would be competent to the petitioners to apply to the Mamlatdar under Section 8 of the Act for summary eviction. It is clear from that judgment that the appeal succeeded on the short point that the lease had not been-registered as required by section 4 of the Act.