A.A.DAVE - (1.) This appeal arises out of the judgment and decree of the learned Judge City Civil Court Ahmedabad dismissing the suit for want of jurisdiction.
(2.) The present appellant New Asarwa Manufacturing Company Limited filed a suit against the present respondent Jetha Parma for obtaining possession of the agricultural land described in plaint para 2 bearing survey number 391 and 392 situated in the sim of Asarwa at Ahmedabad The plaintiff pleaded that the land was situated within the municipal limits and as it was required for N. A. purpose it was not governed by the provisions of the Tenancy Act and therefore prayed for a decree for possession The defendant by his written statement took up a plea that he was a protected tenant and therefore the civil court had no jurisdiction to grant any relief to the plaintiff company. From the pleadings the learned Judge framed four issues of which issue No. 1 was as under :- (1) Is it shown that this court has got jurisdiction to try this suit in view of this fact that the land in question is agricultural land ? This issue was tried as a preliminary issue and the learned Judge recorded a finding that the land being agricultural land the court had no jurisdiction to entertain the suit and that only the Mamlatdar under sec. 70 of the Tenancy Act could have jurisdiction. On this finding the learned Judge dismissed the suit. Against the said judgment and decree the plaintiff has preferred the present appeal to this court.
(3.) Mr. I. M. Nanavaty learned Advocate for the appellant urged that the learned Judge evidently had relied on the ruling of the Supreme Court in the case of Sakharam alias Bapu Saheb Narayan Sanas and another v. Manikchand Motichand Shah and others A.I.R. 1963 Supreme Court 354 wherein it was observed that..... the proceedings for the ejectment upon notice after the expiry of the term of the tenancy of the tenant who has acquired the status of a protected tenant under sec. 3A by the Bombay Tenancy Act 1939 as amended in 1946 in respect of lands falling within the area mentioned in sec. 88(2)(c) of the 1948 Act are governed by . the repealed Act of 1939. Mr. Nanavaty urged that this ruling was over ruled by the Supreme Court in the subsequent case of S. N. Kamble v. The Sholapur Borough Municipality and another A.I.R. 1966 Supreme Court 538 and hence the view taken by the learned Judge that the court had no jurisdiction to entertain the suit with regard to the agricultural land situated within the municipal limits of Ahmedabad was clearly wrong. Mr. Nanavaty submitted that the lands situated within the municipal limits of the Ahmedabad city were exempted from the operation of the Tenancy Act under sec. 88 of the Bombay Tenancy Act 1948. He submitted that even when in 1956 the provision of exempting the lands situated within the municipal limits of the Ahmedabad city was deleted from sec. 88 of the Act. another sub clause was added authorising the Government to reserve any area for N. A. or industrial purpose by issuing a notification. He submitted that once such a notification specifying an area was issued by the Government the provisions of the Tenancy Act would not govern the agricultural lands situated in that area. Mr. Nanavaty submitted that the suit land was included within the municipal limits of the Ahmedabad city since 1939 and as such the land was exempted from the operation of the Tenancy Act of 1939 as well as 1948 and as the notification specifying the whole of Ahmedabad city as an area for NA. or industrial purpose was. simultaneously issued on the day the Tenancy Act as amended in 1956 came into force it was clear that the provisions of the Tenancy Act did not apply to the lands in Asarwa area and therefore the learned Judge was clearly in error in dismissing the plaintiffs suit on the ground that the defendant was a protected tenant. ;