UTTAMCHAND HUKUMCHAND SHET Vs. VISHWANATH BINDRAVAN BUNDELKHANDI
LAWS(BOM)-1972-11-3
HIGH COURT OF BOMBAY
Decided on November 24,1972

UTTAMCHAND HUKUMCHAND SHET Appellant
VERSUS
VISHWANATH BINDRAVAN BUNDELKHANDI Respondents

JUDGEMENT

KANTAWALA,C.J. - (1.) THIS is an appeal filed by the plaintiffs against the decree and judgment passed by all the courts dismissing their suit for possession of agricultural lands and for future mesne profits. By a lease deed dated April 8, 1946, Hukumchand, father of plaintiffs No. 1 to 3 and husband of plaintiff No. 4 leased out the suit lands to the defendants for a period of five years at an annual rent of Rs.1271\ -. The period of the lease was to expire in Shake year 1872. Under this lease deed the defendants were to hand over possession of the lands wherein dry crops were grown at the end of Paush of that year while they were to deliver possession of the lands wherein Bagayat crops were raised on the 15th of Falgum of that year. It is the case of the plaintiffs that as the period for which the lease was granted had expired it was not necessary for them to give a notice to the defendants terminating the tenancy. However, by way of abundant caution on March 23. 1954 the plaintiff No. 4 as the guardian appointed by the Court of the minor plaintiffs Nos. 1to 3 gave a notice to the defendants terminating their tenancy. By this notice the defendants were called upon to hand over possession of Jirayat lands at the end of Paush of thayt year and of the Bagayat lands on the 15th of Falgum of the same year in accordance with the terms of the lease deed. The defendants. however, failed to deliver possession thereof, The plaintiffs under the circumstances filed a suit on July, 5, 1955 for possession of suit lands and for future mesne profits. No claim in this suit was made in respect of arrears of rent or mesne profits.
(2.) THE defendants in their written statement inter alia contended that the Civil Court had no jurisdiction to entertain this suit in view of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act No. 67 of 1948) hereinafter referred to as the Tenancy Act of 1948) as amended by the Bombay Act No. 33 of 1952 and the Bombay Act No.13 of 1956. They also contended that the notice terminating the tenancy was invalid. Their further contention was that even after giving the notice the plaintiffs have accepted rent in respect of the suit lands from the defendants and thereby the notice terminating the tenancy was waived.
(3.) IT is necessary for the purpose of the present appeal to deal with their other contentions in the written statement. The issue as regards the jurisdiction of the Civil Court to entertain the suit was tried as a preliminary issue by the learned trial Judge. He took the view that the Tenancy Act of 1948 as amended by the Bombay Act 13 of 1956 was applicable to the suit lands and the Civil Court had noi jurisdiction to award possession to the plaintiffs in view of the provisions thereof. Against this decision on the preliminary issue the plaintiffs went in appeal before the District Court of East Khandesh. That appeal was appeal No. 29 of 1956. Before this appeal was decided on December 20. 1957. in Civil Rrevn. Appln. No. 120 of 1957 a Division Bench of the High Court took the view that in respect of lands within the limits of Municipal Boroughs the protection to the tenants by the Tenancy Act of 1948 was taken away by the amending Act of 1952 and the Amending Act of 1955 (i.e. the Bombay Act 13 of 1956) gad not the effect of restoring that protection. In view of the said decision it was held that the Civil Court was competent to decide the question whether the plaintiffs who were the landlords were entitled to possession, damages and arrears of rent. As the decision of the Division Bench of the High Court was binding on the District Court, on March 26, 1958 a Joint purshis was filed by the advocates of the parties referring to the said decision of the High Court and statinf that in view of the Said decision the Civil court will have jurisdiction to entertain the suit. As the position in law as concluded by the decision of the Division Bench of the High Court was binding on the District Court. on March 28, 1958 the District Court allowed the appeal and set aside the order of dismissal of the suit on preliminary grounds. The suit was remanded back to the trial court for disposal of the other issues raised therein.;


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