MANEKJI EDULJI MISTRY Vs. MANEKSHA ARDESHIR IRANI
LAWS(BOM)-1972-9-20
HIGH COURT OF BOMBAY
Decided on September 07,1972

Manekji Edulji Mistry Appellant
VERSUS
MANEKSHA ARDESHIR IRANI Respondents

JUDGEMENT

Malvankar, J. - (1.) On March 16, 1944, the respondents in First Appeal No. 453 of 1960 had executed a lease in favour of the appellants for a period of five years with effect from March 1, 1943 in respect of certain agricultural lands belonging to Jivanji Jamasji Mistry's Adarian Charities. On October 25, 1955, the appellants issued notice to the respondents terminating the tenancy with effect from April 1, 1957 on the expiry of one year's period ending with March 31, 1957. Without prejudice to this notice, the appellants gave another notice to the respondents on June 10, 1958 calling upon them to deliver possession of the lands within seven days from the date of the receipt of the notice, and thereafter filed a suit for recovery of possession.
(2.) The respondents contended that they were protected tenants under the Bombay Tenancy and Agricultural Lands Act, 1939, and also the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called "the Act") and, therefore, they were entitled to retain possession. The trial Court held that after March 31, 1957 the appellants allowed the respondents to continue in possession by extending the term of the lease at least for one year till March 31, 1958 and, therefore, the notice dated October 25, 1955 terminating the, tenancy with effect from March 31, 1957 could not be availed of by the appellants. As regards the notice dated June 10, 1958, the trial Court found that it was not a valid notice, inasmuch as it did not expire with the end of the year ending on March 31. On appeal, this Court, by its judgment dated November 6/December 6, 1962, held that it was not necessary to consider whether the respondents had acquired the status of protected tenants and that the lease which was operative from March 1, 1943 for a period of five years was under section 23 (1) (b) of the Act of 1939 as amended in 1946 deemed to be for a period of not less than ten years. This Court, therefore, took the view that the lease was effective upto February 28, 1953. Meanwhile, the Act came into force on December 28, 1948 and, therefore, this Court held that section 5 of the Act, as it originally stood, was in terms similar to section 23 of the Act of 1939, but as a result of amendment of section 5 of the Act by the Bombay Act 33 of 1952, the period of the lease was renewed upto February 28, 1963 and, therefore, the appellants were not entitled to a decree for possession. This Court was also of the opinion that the respondents had acquired vested right of protection against termination of tenancy merely on the ground of expiry of the duration fixed by the agreement and that it was not necessary to decide whether the respondents had acquired the status of protected tenants. This Court also held that by reason of the provisions of section 5 of the Act as amended in 1952 the respondents acquired renewed tenancy upto February 28, 1963 and unless the appellants-landlords could show that the rights so acquired had ended they could not claim possession. The appellants, therefore, went in appeal to the Supreme Court. Their Lordships of the Supreme Court, however, sent back the case to this Court again for submitting a report on two questions : (1) Whether on March 1, 1953 the respondents were protected tenants and (2) if the respondents were protected tenants on March 1, 1953, whether on that account they had the right to claim the benefit of section 5 and other relevant sections of the Act. This Court, after receipt of the record and proceedings, recorded its findings on these two questions holding (1) that the respondents were protected tenants on March 1, 1953, and (2) that they did not have the right to claim the benefit of section 5 or other relevant sections of the Act. Accordingly, a report was submitted to the Supreme Court by this Court. In the Supreme Court, the respondents challenged the second finding only. However, their Lordships of the Supreme Court upheld the findings recorded by this Court, set aside the judgment of this Court recorded on November 6/December 6, 1962, and remanded the appeal again back to this Court for consideration as to whether there was a valid termination of tenancy. The main question, therefore, that is agitated before us in this appeal after remand, is whether the appellants have validly terminated the tenancy of the respondents.
(3.) Before we proceed to discuss the question regarding the validity of the termination of tenancy, it would be convenient to dispose of two questions raised by the learned counsel Mr. Abhyankar, appearing on behalf of the respondents, and bearing on the question whether or not the lands in dispute belonging to the appellants are exempted from certain provisions of the Act under section 88B. The respondents have contended firstly that the certificate required under section 88B (2) of the Act being issued on August 29, 1958, the appellants would be entitled to the exemption only from that date and not from any date earlier, though the trust was registered on October 13, 1952, and secondly, the Collector who issued the certificate did so without issuing any notice to the respondents who were the affected persons and in fact he did not hold any inquiry before granting the certificate to the appellants. The appellants originally filed this suit for possession after terminating the tenancy on the basis that the lands in dispute being of the ownership of the trust Jivanji Jamasji Mistry's Charities were exempted from the operation of certain provisions of the Act under section 88B. The respondents in their written-statement contended that the trust did not fall under section 88B of the Act and, therefore, the Civil Court had no jurisdiction to entertain the suit. The learned trial Judge framed issue No. 5 on these contentions and recorded a finding against the respondents. The respondents, however, did not challenge that finding either in this Court or in the Supreme Court on any ground. It is for the first time after the case was remanded by the Supreme Court to this Court for deciding the question whether or not the tenancy was validly terminated and for disposal of the case according to law that the respondents have raised the aforesaid two questions in this Court.;


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