DALWADI JAYANTILAL DAHYABHAI Vs. MANISHANKER MANEKLAL PANDYA

JUDGEMENT

(1.) This Special Civil Application has been referred to the Division Bench by P. D. Desai J. of this court as per his order dated November 16 1976 because he found it not possible for him to agree with the judgment of the learned Single Judge of this court in the case of .. The short question that falls to be determined in this Special Civil Application is whether a mortgagee inducted on the agricultural piece of land prior to 20th December 1948 the date on which the Bombay Tenancy and Agricultural Lands Act 1948 came into operation would be a protected tenant entitled to various protections provided for him in this Act. In the reported judgment the learned Single Judge of this court C. V. Rane J. held that the judgment of the Division Bench of this case in the case of . was no longer good law in view of the judgment of the Supreme Court in the case of S. N. Kamble v. The Shol AP ur Borough Municipality, AIR 1966 SC 538.

(2.) The facts of this case are no longer in dispute. The petitioner in this petition is the owner of the agricultural land who had mortgaged his field with the respondent no. 1 in the year 1943. The said mortgage continued to remain operative till 22nd November 1966 when the petitioner allegedly redeemed the said field by paying to the respondent no. 1 the mortgage money namely Rs. 3251.00. Thereafter on 7-3-69 the respondent no. 1 filed an application under sec 70B of the Bombay Tenancy Act for a declaration that he was the protected tenant of the land. Ultimately the Revenue Tribunal setting aside the judgment of the Mamlatdar and the appellate authority held that in view of the judgment of the Gujarat High Court in the case of Salman Raje (supra) the respondent no. 1 was a protected tenant who was not liable to be evicted from the land in question.

(3.) The point arising in this petition had pointedly come up before the Division Bench of this Court in Salman Rajes (supra) case and the Division Bench laid down the law very clearly in the following terms :