LAXMIBAI KISANRAO TAMHANE Vs. TRIVENIBAI

JUDGEMENT

(1.) THIS appeal has been referred to a Division Bench by a learned Single Judge as he felt that a question of law of some importance was involved in this appeal.

(2.) REGULAR Civil Suit No. 488 of 1966 was filed in the Court of the 4th Joint Civil Judge, Junior Division, Poona, by the present respondent seeking possession of property situated within the municipal limits of the Poona Corporation. She sought possession of Survey No. 162 Hissa Nos. 1 and 2 admeasuring 8 acres 26 gunthas which was in the possession of one Kisan from about 1935 as tenant. On May 5, 1955 Kisan died leaving behind him his widow, the appellant No. 1 and two sons Vithal and Raghunath, appellants Nos. 2 and 3. Plaintiff claimed possession on the ground that the tenancy was terminated by her by Exh. 117 dated September 13, 1965 effective from March 31, 1966. It was the case of the plaintiff that since the lands were situated within the limits of Poona Municipal Corporation and were within the Industrial Zone, the Bombay Tenancy and Agricultural Lands Act, 1948, did not apply to these lands.

(3.) BY their written statement, Exh. 9, the defendants, the present appellants, took up inter alia the following contentions: (1) that the lands were governed by the Bombay Tenancy Act, (2) that Kisan was a protected tenant and this right was inherited by the present appellants upon the death of Kisan, (3) that the Civil Court had no jurisdiction to deal with any of the matters in issue since the case was governed by the Bombay Tenancy and Agricultural Lands Act, 1948, as amended from time to time, (4) that there was no effective termination in fact and (5) that the plaintiff had waived her right under the notice as she had accepted rent after giving notice and even after the filing of the suit.