Decided on January 21,1963



P. N. BHAGWATI, J. M. SHELAT - (1.) In and prior to 1888 S. No. 1535 of Dehgam belonged to one Shankar Kahandas. In 1888 Shankar mortgaged that survey number to one Vala Piru. Subsequently Vala Piru transferred the mortgage in favour of one Karamchand Dharamchand. Karamchand thereafter let out the land to the father of the petitioner. After the death of Karamchand his son Ambalal Karamchand continued the tenancy and the petitioners father continued to cultivate the land as a tenant. On the death of the petitioners father the petitioner continued in possession of the land as a tenant. Shankars heir one Shiva Bapu sold the land in 1945 to respondent No. 1 and one Ambalal Purshottamdas whose heirs and legal representatives are respondents 2 to 7. After the aforesaid purchase respondent No. 1 and Ambalal Purshottamdas filed on March 29 1945 a suit for redemption and possession being suit No. 188 against Ambalal Karamchand. A decree for redemption and possession was passed on November 22 1951 Thereafter respondent No. 1 and Ambalal Purshottamdas took out a Darkhast against the mortgagee Ambalal Karamchand. In pursuance of the Darkhast a panchnama as to the standing crop was made hut it appears that actual possession was not taken from the petitioner. Consequently the respondents filed a suit against the petitioner being suit No. 1059 of 1958 or possession and in that suit the issue was as to whether the petitioner was a tenant That issue was referred to the Mamlatdar and the reference was heard by the Tenancy Aval Karkun who held that the petitioner was a deemed tenant under sec. 4 of the Bombay Tenancy and Agricultural Lands Act 1948 On the matter having been taken up before the superior revenue Tribunals both the Prant Officer and the Tribunal held that on the redemption of the mortgage the petitioners tenancy ceased and therefore the petitioner was no longer a tenant and was not entitled to the protection of the Tenancy Act.
(2.) It may be observed that Dehgam where the land in question is situate was in the former Baroda State territory. The merger of Baroda State territory having taken place in 1949 it was only on July 30 1949 that the Tenancy Act then in force viz. Act LXVII of 1948 was applied for the first time to this area.
(3.) The finding of the Tribunal was that the petitioner was inducted on the land before the Tenancy Act in this case the Act of 1948 was brought into operation and possibly before 1948. But it is clear that though the petitioner was brought on the land as a tenant prior to 1948 the Tenancy Act of 1939 did not apply to his tenancy because that Act was never brought into operation in this area and the only Act which was brought into force was the Act of 1948. Consequently it would be the Act of 1948 only that would be applicable. On these findings the Tribunal followed the principle laid down in Kanji Kurji v. Kala Gopal 59 Bom. L. R. 846 that in the case of land situate in the area to which the Act of 1939 was never made applicable as in the case of land situate in the former Baroda State a tenant of a mortgagee in possession who derived title through him could not acquire the status of a deemed tenant or a statutory tenant under the Act of 1948. On this footing the Tribunal held that the applicant was not entitled to claim the status of a deemed tenant or a statutory tenant under the Act of 1948.;

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