TULARAM RAGHO POWAR Vs. TEJILAL MOTIRAM POWAR

JUDGEMENT

(1.) THIS is defendants' appeal from the concurring judgment of the Additional District Judge, Bhandara, in Civil Appeal No. 99A of 1936, delivered on 11th January 1938. The suit out of which this appeal arises was filed by the respondent, a cosharer of the village, Vihirgaon, for possession of two occupancy fields Nos. 143-21 and 144, rental Rs. 14, on the ground that the defendants had no lawful right to the fields. The fields were formerly held by one Gana as a tenant. He died in 1915 or 1916 survived by two widows by name Yello and Hirro. Yello died in 1924 and Hirro died in 1935. The respondent's case is that on their death the tenancy lapsed for failure of heirs. The essential issue in the case was whether the defendants were entitled to the possession of the holding as heirs to Gana the original tenant. It has been found that although the defendants were descended from Dhondba, the great-great-grandfather of Gana, they were not within 7 degrees of kindred from the tenant and therefore did not answer the proviso (ii) to Section 11, Central Provinces Tenancy Act, 1920. It was therefore held that the tenancy right did not devolve on the defendants. Another objection to the suit which was raised by the defendants was that the plaintiff not being the lambardar could not sue for possession. On that point, both the Courts below have held that he as a co-owner was entitled to sue the defendants who were rank trespassers. The defendants had also made an unsuccessful attempt to evoke their right from a will alleged to have been executed by the widows of Gana dated 4th January 1918. In this Court it is not contested that if Section 11 proviso (ii), Central Provinces Tenancy Act 1920, is applicable the defendants would have no right to hold the fields. It is, however, contended that in view of the recent amendment of the Act, which came into force on 1st May 1941 the defendants are entitled to come in as heirs and that this Court should adjudicate on the controversy in the light of Section 11 of that Act as it now stands after the amendment. The amendment of Section 11 which was made by Act 11 of 1940 delotes the proviso which had been appended to the Central Provinces Tenancy Act (1 of 1920). The appellants' argument is sound to the extent that if the defendants are entitled to the benefit of the amended law the plaintiff's suit must be dismissed. But that is obviously giving a retrospective operation to the amendment and the Act itself is silent about it. An Act which affects vested rights and is not merely procedural, that is to say, one that affects merely the method of the enforcement of the rights, cannot be presumed to have, retrospective operation. Otherwise, any new enactment would result in upsetting established titles. My attention is invited to Ram Ratan Sahu v. Mohant Sahu (07) 6 Cri.L.J. 74 and Shantiniketan Co-operative Housing Society Ltd. v. Madhavlal A.I.R. 1936 Bom. 37. The latter case is distinguishable for the obvious reason that their Lordships of the Bombay High Court had before them an Act which had retrospective operation. The conclusive reply to the contention raised on behalf of the appellants is to be found in Bhagwant Rao v. Damodhar A.I.R. 1938 Nag. 112 and Ganpatrao v. Jagannathrao .

(2.) THE case has to be viewed with reference to the date of Hirro's death in 1935 and the rights of the parties have to be ascertained and adjudged in the light of the law which was then in force. The law then applicable was Section 11, proviso (ii), Central Provinces Tenancy Act, 1920. The inheritance could not remain in abeyance for 6 years until that section was amended in 1941. On Hirro's death the tenancy right either devolved on the tenant's heirs or on their failure it escheated to the landlord. Inasmuch as the defendants did not come within the purview of Section 11, proviso (ii), Central Provinces Tenancy Act, 1920, the tenancy right was extinguished so as to give the landlord the right of reentry. That right vested in the malguzar as far back as 1935. It would be preposterous to say that the legislature by the amendment of 1941 intended to affect that right. It is contended that the plaintiff was not entitled to sue because he was not the lambardar. He may not be lambardar but he was admittedly a co-owner and as such had a preferential right to possession as against the defendants who were only trespassers. Lastly it is urged that the defendants had been put in cultivating possession as far back as 1921 and that therefore the widows should be deemed to have transferred their right to them and, consequently that the plaintiff's proper course was to have applied Under Section 13, Central Provinces Tenancy Act. This point was never developed in the trial Court although it was indicated in para. 6 of the defendants' written statement. It is utterly devoid of force for the reason that the defendants in their written statement, only claimed to be licensees and not as transferees. As licensees they would undoubtedly be entitled to remain in possession during the lifetime of the tenants and nobody ever disturbed them in the cultivation of their fields until the surviving widow died. On the death of that widow the defendants could remain on the land only on proof of their title as Gana's heirs and that title they had none. The appeal is dismissed with costs.