J.B.MEHTA - (1.)The defendants-tenants in this appeal challenge the eviction decree which has been passed by the learned Single Judge in favour of the plaintiffs-purchasers of the three suit lands. There were other companion matters which have not come up in appeal and in this appeal we are concerned only with the purchasers suit for eviction of the defendants-tenants The suit lands originally bore S. Nos. 45 and 46 which are now divided into new 5 No. 46 and New 5. No. 47 and 50 respectively of village Dunthal in Chorasi Taluka Surat District and there is no dispute that they were situated within the distance of two miles of the limits of Surat Borough Municipality as on December 28 1948 when the Bombay Tenancy and Agricultural Lands Act 1948 hereinafter referred to as `the Act or the 1948-Act came into force. As far as old S. No. 45 was concerned there was a mortgage with a lease back on March 17 1880 and that original owner Mulla Alibhai Mulla Habibulla by the sale deed dated March 20 1889 sold the same to the Acharya of Swaminarayan Temple Vadtal for Rs. 1050/by Ex. 164. As far as other S. No. 46 was concerned in that case also there was a mortgage with lease back dated December 24 1882 and by the sale deed dated March 20 1889 at Ex. 165 that old S.No. 46 was also sold by its owner Patel Vallabh Bhana to the then Acharya of Swaminarayan Temple Vadtal. By Ex. 485 by a registered lease dated January 23 1890 for 51 cultivating seasons (S. Y. 1946 to 1997) in respect of old S.Nos. 45 and 46 the defendants ancestors Bhaga Govind and one Jaga Lallu became lessees. Thereafter by the lease dated April 21 1901 at Ex. 163 executed by Bhoga Govind in respect of both the S. Nos. he became lessee for 40 years on annual rent of Rs. 115/and that lease was to expire on April 20 1941 The Bombay Tenancy Act 1939 came into force in this area on April 1 1941 The agreed period of lease expired and the tenant as averred by the plaintiffs in the plaint continued to remain in possession. There was a registered lease by the Acharya in favour of the defendants Vasanji Keval and Ranchhod Morar for five years on annual rent of Rs. 115/and land revenue on January 12 1942 Ex. 174 in respect of the two old S. No. which had been given the three new S.No. as aforesaid. The Bombay Tenancy Act 1939 had been amended on November 8 1946 and the amended sec. 23 provided for statutory extension of the lease by making it 10 years lease. The Acharya had after the resolution of the committee after public advertisement entered into an agreement for sale of the suit lands to the plaintiffs on August 4 1947 for Rs. 42270/and the sale deed was executed at Ex. 162 on September 25 1947 in favour of the plaintiffs purchasers subject to the tenancy rights of the defendants. The tenants bad applied while on August 14 1947 for mutation of these names as permanent tenants while the plaintiffs purchasers had terminated the lease by a notice at Ex. 156 dated October 19 1947 under sec. 7 of the 1939 Act on the ground of personal cultivation demanding possession on March 31 1949 A reminder notice was again served at Ex. 156A on June 18 1948 demanding possession on expiry of March 31 1949 As per the Mamlatdars order the defendants names had been entered in the revenue records. The State first confirmed this order on 28-1-49 but by the final order of the State Government dated December 16 1969 the original order was treated as ineffective and not binding to the parties and all concerned were left to their respective position as on August 13 1947 The Tenancy Act of 1948-the present Act came into force on December 28 1948 and originally in view of the exemption under sec. 88 (1) (c) the provisions of secs. 1 to 87 did not apply to the suit lands within two miles of Surat Municipal limits. This exemption was removed and secs. 1 to 87 became applicable by the Bombay Amendment Act 33 of 1952 which came into force on January 12 1953 There was a further amendment in the Bombay Tenancy Act 1948 by the Act 13 of 1956 on August 1 1956 also during the pendency of the suit. The plaintiffs present suit was filed on April 29 1949 The trial Court had decreed the suit for possession with mesne profits while the learned Assistant Judge had dismissed the suit. The second appeal was allowed by the learned Single Judge as he hold that the defendants were not protected under the Tenancy Act and that the civil Courts could decide the present eviction suit and the controversy whether the defendants were permanent tenants and whether they were protected. On merits the learned Single Judge reversed the finding as regards the Benami character of the purchase by holding that the sale in favour of the plaintiffs-purchasers was neither nominal and sham nor without consideration. The learned Single Judge further held that the defendants were not permanent tenants and as the suit. notice terminating their tenancy was held to be legal and valid the eviction decree was passed against the defendants. Therefore the defendants have filed the present appeal.
(2.)Mr. Vakil in this appeal challenged the finding of the learned Single Judge on the question of the jurisdiction of the Civil Court to pass such an eviction decree against these tenants by holding that they were not protected under the Tenancy Act even when it became applicable on January 12 1963 in respect of the suit lands. On merits Mr. Vakil challenged the three findings as the learned Single Judge could not reverse the pure finding of fact as regards the Benami character of the sale deed taken by the plaintiffs purchasers. He also challenged the findings that the defendants were not permanent tenants and that their tenancy was validly terminated. As we are holding that the defendants should succeed on the short ground that the Civil Court had no jurisdiction to pass the eviction decree when the Tenancy Act became applicable to the suit lands protecting these tenants from January 12 1953 by Act 33 of 1952 it would not be necessary to go into the other findings as to the merits.
(3.)The learned Single Judge has disposed of this question relying on the decision in S. N. Kamle v. Sholapur Municipality A.I.R. 1966 S. C. 538 by the Full Bench of five Judges. In that decision their Lordships had considered the effect of the words save as expressly provided in this Act in sec. 89 (2) (b)in respect of lands which were exempted from the provisions of secs. 1 to 87 by the express enactment of sec. 88 (1) (a) in respect of lands held on lease from a local authority. Their Lordships in terms held that the clause nothing in this Act shall affect or be deemed to affect in sec. 89 (2) (b) was qualified by the words save as expressly provided in this Act. Therefore if there was an express provision in the 1948-Act that would prevail over any right title or interest etc. acquired before its commencement. Those words save as expressly provided in this Act qualify the words any repeal effected thereby and therefore even in the case of the repeal of the provisions of 1939Act if there was an express provision which affected any right title or interest acquired before the commencement of the 1948-Act that would also not be saved. Their Lordships pointed out that sec. 88 was clearly an express provision which took out such leases of land held from a local authority from the purview of secs. 1 to 87 of the 1948-Act. One of the express provisions was sec. 31 itself which recognised protected tenants and if that section was to be treated as non-existent so far as such lands held on lease from a local authority were concerned it followed that there can be no protected tenants of lands held on lease from a local authority under the 1948-Act. Therefore even though there was no such express provision destroying or taking away the rights of protected tenants acquired under the 1939-Act in respect of such lands held on lease from a local authority. Their Lordships held at page 542 that the effect of the express provision contained in sec. 88 (1) (a) clearly was that sec. 31 must be treated as non-existent so far as lands held on lease from a local authority were concerned. Their Lordships in terms observed that no express provision was necessary stating that there would be no protected tenants after 1948. Act came into force with respect to lands held on lease from a local authority because that was the plain effect of the provisions contained in secs31 88 and 89 (2) (b) of the 1948-Act. Their Lordships further pointed out at the end that even though sec. 4A took the place of sec. 31 after the amendment of 1956 this amended sec. 4A did not apply to such lands held on lease from a local authority because what was said in the context of sec. 31 would equally apply to sec. 4 and therefore the tenants could not contend that they were protected tenants under the 1939 Act and were entitled to the benefit of sec. 31 or amended sec. 4A in view of the fact that sec. 88 (1) (a) was the express provision which took away interest of protected tenants under the 1939-Act in actual effect. Their Lordships overruled the decision in Sakharams case (Sakharam v. Manikchand) AIR 1963 S. C. 354 where full effect was not given to the words save as expressly provided in this Act appearing in sec. 89 (2) (b) and it was not noticed that there could be no protected tenants after the 1948-Act came into force. The said sec. 88 (1) in its application to such leases from local authority would have no meaning unless it affected rights of protected tenants contained in sec. 31. Therefore more was read in sec. 89 (2) (b) than was justified when it was held that the provisions of sec. 88 (1) (a) (b) and (c) were entirely prospective and were not intended to be of a confiscatory character to destroy the rights acquired under the 1939-Act as the protected tenants. Their Lordships in terms observed that the Legislature might have well thought that the status of protected tenant should not be given to lessees of lands from a local authority in the interest of the general public and therefore took away that interest by the express enactment of sec. 88(1) (a). The status was after all conferred by the 1939Act and it could be equally taken away by the 1948-Act. Their Lordships further pointed out that sec. 88(1)(a) applied not only to lands held on lease from local authority but also from the State and one can visualise the situation where the State might need to get back lands leased by it in public interest. Therefore the express provision was made in sec. 88 (1)(a) with respect to leases from a local authority or the State who had become protected tenants under the 1939-Act. To that extent their Lordships relied upon the decision in Mohanlal Chunilal Kothari's case (Mohanlal Chunilal Kothari v. Tribhovan Tamboli) A.I.R. 1963 S.C. 358 where it was held that sec. 88(1)(d) must be applied retrospectively for unless that was done that provision would be rendered completely ineffective. Their Lordships however corrected the observation even in Mohanlal Chunilal Kothari's case by holding that this retrospective effect was not only upto 1948 but even so as to destroy even the rights acquired under the 1939 Act. Further proceeding their Lordships pointed out that not only sec. 88 (1)(d) applied in the future but even sec. 88(1)(a) (b) (c) also applied in the future and still all these provisions applied retrospectively so as to destroy the rights acquired even under the 1939-Act. Therefore this decision clearly settles the legal position as to the true construction of these two relevant provisions in sec. 88(1)(a) to (d) and sec. 89(2)(d) as it categorically lays down that the effect is to take away rights which had accused to the tenants even under the 1939-Act and therefore they are retrospective not only upto the date of 1948-Act but so as to affect even the rights acquired under the 1939-Act. No doubt the decision is in the context of lands held from a local authority under sec. 88(1)(a) and in the context of claim of protected tenancy under sec. 31 but the ratio is capable of wider application.
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