KEDARNATH BHARGAVA Vs. NETRAM

JUDGEMENT

(1.) THE facts of this case are not, in reality, in dispute and the only question involved is one of law. Bakya an absolute occupancy tenant of field No. 227 in mouza Ambada, District Nagpur, had mortgaged his holding along with other property to the defendant-respondent, Netram, on 7-5-13. The defendant obtained a preliminary decree for foreclosure on 25-9-19 and entered into possession on 7-12-20. On the date of execution of the mortgage as well as on the date the preliminary decree for foreclosure was passed, the old Tenancy Act of 1898 was therefore, in force. On the date the mortgagee entered into possession, the Tenancy Act of 1920 had come into being. The plaintiff-appellant, as lambardar on 19-1-24 brought the present suit for ejectment of the defendant from the holding on the ground of the mortgage being in contravention of Section 41 of the Tenancy Act of 1898 and in the plaint the date of the cause of action was specifically given as the 7th of December 1920. The Judge of the first Court, so far as the relief claimed in suit as to the absolute occupancy field was concerned, held that the present suit was governed by the Tenancy/Act of 1920, that the right to eject the transferee under the old arose only on the dispossession of the original tenant and that, as this dispossession had only taken effect on the 7th of December 1920, the specific relief granted to the landlord under Section 41 of the old Act was no longer available. A similar view was taken by the District Judge on the plaintiff appealing to his Court, and the same question now comes up for consideration here.

(2.) I have been referred to Section 110 of the Tenancy Act of 1920. That provision lays down that rights conferred under previous enactments shall, so far as may be deemed to have been acquired under the Act of 1920. In this connexion, reference has also been made by the pleader for the appellant to Kola Tihari v. Narayan [1900] 13 C.P.L.R. 143; Hindusingh v. Mangal A.I.R. 1923 Nag. 227 and Nathuram v. Jagannath 16 N.L.R. 106. These cases are authority for the view that unless an intention to the contrary is clear, an Act is to be construed as operating only on cases on facts which come into existence after the Act, and not retrospectively on cases which had come into existence before the Act. Similarly, unless from the language of a statute a contrary effect is clearly intended, even statute, which takes away or impairs vested rights, must be presumed not to have a restropective operation, although this presumption does not apply to provisions which affect only the procedure and practice of the Courts.

(3.) IT is impossible, in short, to accept the contention which has been urged on behalf of the appellant that the present plaintiff's right to sue the mortgagee for ejectment in reality, came into being when the mortgage was effected. The complete cause of action, or in other words, the vested right in question, only matured on 7-12-1920 and I can find nothing in Act I of 1920 to support the proposition that the Legislature intended any such right, which was still inchoate on the 1st of May 1920, to be kept alive. I fully concur in the finding of both the lower Courts and dismiss the present appeal. The present appellant must bear the respondent's costs in the two lower Courts as already ordered.