PANDURANG HARI JADHAV Vs. SHANKAR MARUTI TODKAR

JUDGEMENT

(1.) THIS revision application raises an interesting question under the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act of 1948). In truth, it presents one more riddle demanding solution from this Court, The circumstances giving rise to this application may be briefly stated as follows: Survey Nos. 49/2 and 32/3, which belong to the petitioner, are situated within the limits of the Municipal Borough,Kolhapur. Opponent No. 1 took those lands on lease in 1954 for a period of eleven months. Again on May 24, 1955, he passed another rent note for a further period of eleven months in favour of the petitioner. On December 9, 1955, the petitioner gave a notice terminating the tenancy and calling upon the opponents to vacate the lands with effect from March 31, 1956. It may be mentioned that opponent No. 2 was a sub -tenant of opponent No. 1. On April 10, 1956, the petitioner (who will hereafter he called the plaintiff) filed a suit against the opponents (who will hereafter be called the defendants) for eviction and arrears of rent. The amount of rent claimed was Rs. 840.

(2.) IT was contended by the defendants that the civil Court had no jurisdiction to grant the reliefs claimed by the plaintiff. As regards the arrears of rent, they stated that the civil Court could not award the claim unless reasonable rent was settled by the Mamlatdar. On the basis of these contentions, preliminary issues were framed by the trial Judge, who came to the conclusion that the civil Court has no jurisdiction to try the suit. At the same time, somewhat inconsistently, the trial Court referred the issue relating to reasonable rent to the Mamlatdar for a finding. It is against that order that the plaintiff has come up in revision.

(3.) THE effect of the aforesaid proviso was recently considered by a Full Bench of this Court in Maganbhai Jethabhai Patel v.Somabhai : (1958)60BOMLR1383 , F.B. It was held in that case that the proviso to Section 43C of the Bombay Tenancy and Agricultural Lands Act, 1948, affords protection to the tenant, if the tenant had the protection under the Act, notwithstanding the fact that that protection was taken away by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952. That protection must be given to the tenant even though the protection is claimed after a suit for ejectment was filed against him and the protection is afforded by the proviso which was enacted after the suit was instituted. It was also held that the right of the opponent as a tenant under the Act of 1948, was, by a legal fiction introduced by the proviso to Section 43C, continued and was not affected by the Amending Act of1952. It was further held that the proviso to Section 43C was applicable to the case, as there was no final judgment against the opponent in the sense that the judgment given by the Mamlatdar was subject to revision, and the revisional Court was bound to take notice of the change in law effected by the proviso.