PATEL AMBALAL MANILAL Vs. DESAI JAGDISHCHANDRA NAGINLAL

JUDGEMENT

(1.) At this stage it may be pointed out that the appellants have made anapplication for permission to amend the written statement in order to enable them to raise a contention that they being mortgagees in possession had become tenants under the provisions of the Bombay Tenancy and Agricultural Lands Act 1939 (for short the 1939) Act) and that the above position had remained unaffected even under the Bombay Tenancy and Agricultural Lands Act 1948 (For short the 1948 Act) and hence the civil court had no jurisdiction to decide the suit. No such contention was raised in either of the courts below. This shows that the appellants have given the above application for amendment at a very late stage. It is argued by the learned Advocate for the appellants that even if it is held that the appellants were in possession of the suit land as mortgagees they should be deemed to be tenants and hence the civil court has no jurisdiction to hear the suit. In support of the above arguments he has relied on the decision of this court in the case of SALAM RAJE V. MADHVSANG BANESANG AND OTHERS 4 G.L.R. 817. The relevant observations of this court in the above case are- It follows from the views categorically expressed by the full bench in this decision that if a tenant of a mortgagee became a deemed tenant under sec. 2A of the 1939 Act on the ground only that he came on the land lawfully though not because of the permission of or privity with the owner a mortgagee under an usufructuary mortgage must necessarily be in the identical position and must be said to be a deemed tenant on the same reasoning under sec. 2A of the 1939 Act. Sec. 2A of the Tenancy Act 1939 defines a tenant as a person lawfully cultivating land belonging to another person if such land is not cultivated personally by the owner and secondly if such person is not-

(2.) The Tenancy Act of 1939 was replaced by the Tenancy Act of 1948 According to sec. 4(c) of the Tenancy Act 1948 however a mortgagee in possession was specifically excluded from the category of a tenant. This court held in the above case that section 4 was not retrospective and the rights acquired by the tenant under the old Act were expressly saved by sec. 89(2)(b)(i) of the Tenancy Act 1948 Sec. 89(2)(b)(i) of the above Act provides

(3.) The above clause has been subsequently considered by the Supreme Court in the case of S. N. KAMBLE V. THE SHOLAPUR BOROUGH MUNICIPALITY AND ANOTHER A.I.R. 1966 SUPREME COURT 538 In the above case The appellant took on lease two survey numbers from the respondent Sholapur Borough Municipality on 1/04/1946 for 3 period of three years. The land is situate within the municipal limits. About 8/11/1946 the Bombay Tenancy Act No. 29 of 1939 (hereinafter referred to as the 1939-Act) was applied to this area and sec. 3-A of that Act provided that every tenant shall on the expiry of one year from the date of the coming into force of the Bombay Tenancy (Amendment Act (No. XXVI of 1946) be deemed to be a protected tenant unless his landlord has within the said period made an application to the Mamlatdar for a declaration that the tenant was not a protected one. The respondent did not file a suit within one year and therefore the appellant claimed to have become a protected tenant under the 1939 Act. The 1939-Act was repealed in 1948 by the Bombay Tenancy (Amendment) and Agricultural Lands Act No. LXVII of 1948 (hereinafter referred to as the 1948 Act. Sec. 31 of the 1948 Act provided that for the purposes of this Act a person shall be recognised to be a protected tenant if such person had been deemed to be a protected tenant under secs. 3 3 or 4 of the 1939-Act. Ordinarily therefore the appellant would have become a protected tenant under this section of the 1948- Act if he had become a protected tenant under the 1939-Act. But sec. 88 of the 1948 - Act inter alia provided that nothing in the foregoing provisions of the 1948-Act shall apply to lands held on lease from H local authority. Therefore if sec. 8X prevailed over sec. 31 the appellant would not be entitled to the benefit of sec. 31 and could not claim to be a protected tenant under this section. The appellant however relied on sec. 89(2) of the 1948-Act which provided for the repeal of the 1939- Act except for secs. 3 3 and 4 which continued as modified in schedule I of the 1948 That sub-section provided that nothing in the 1948-Act or any repeal effected thereby shall save as expressly provided in this Act affect or be deemed to affect any right title interest obligation or liability already acquired accrued or incurred before the commencement of the 1948-Act.