Appeal No 12062
Appeal by special leave from the judgment and decree dated April 23 1959 of the former Bombay High Court in Second Appeal No 1359 of 1955
M section K Sastri and M section Narasimhan for the appellants
O C Mathur J B Dadachanji and Ravinder Narain for the respondent
February 14 1964
The Judgment of the Court was delivered by SUBBA RAo J
This appeal by special leave raises the question of the applicability of the Bombay Tenancy and Agricultural Lands Act 1948 Bom
Act No 67 of 1948 hereinafter called the 1948 Act  to the tenancy of the land in dispute
The appellants are the legal representatives of one Prabhubhai Ratanji
The suit property is agricultural land situate within two miles of the limits of the Surat Municipal Borough
It was part of the erstwhile Sachin State
On May 7 1946 Nagindas Atmaram Khatri the respondent herein who was the owner of the said land gave a lease of the same in favour of the said Prabhubhai Ratanji for a period of six years
On July 28 1948 Sachin State became part of the Stateof Bombay
From that date the Bombay Tenancy Act 1939hereinafter called the 1939 Act was made applicable to the said area
On April 23
1951 Nagindas Atmaram Khatri the landlord gave a notice to the defendant terminating the lease from March 31
After giving the said notice he filed Reg
Suit No 403 of 1952 in the Court of the Subordinate Judge Surat for eviction of the lessee Parbhubhai Ratanji
The suit was contested on various grounds the main contention being that under the provisions of the 1939 Act the defendant 775 had acquired tenancy rights therein
As the defendant died on September 30 1955 his legal representatives were brought on record in his place
The learned Civil Judge inter alia held that the 1939 Act was repealed by the 1948 Act and that the latter Act did not apply to the suit land as it was within two miles of the limits of the Surat Borough Municipality
On that finding he gave a decree for possession arrears of rent and mesne profits
Against the said decree the defendant preferred an appeal to the District Judge
The learned District Judge held that the landlord failed to prove that the suit property was within a distance of two miles of the limits of the Surat Borough Municipality and on that finding he came to the conclusion that the 1948 Act applied to the suit land and set aside the decree of the trial court awarding possession to the plaintiff but maintained the decree for arrears of rent
Thereupon the plaintiff preferred a second appeal to the High Court insofar as the decree of the District Court went against him
The said appeal came up before a Division Bench of that High Court
The High Court held that the suit land was within two miles of the limits of the Surat Borough Municipality and that therefore the 1948 Act did not apply to the suit land
On that finding it set aside the decree passed by the learned District Judge and restored that passed by the learned Civil Judge
The legal representatives of the defendant have preferred the present appeal
Learned counsel for the appellants contended that the High Court should have held that the rights of the appellants under the 1939 Act were saved by the 1948 Act
He contended broadly that the right of the appellants under the 1939 Act were preserved under section 892 of the 1948 Act with the result that the lease extended to 10 years under the 1939 Act was saved thereunder and that by reason of the Bombay Tenancy and Agricultural Lands Amendment Act 1952 Bom
Act 33 of 1952 hereinafter called the 1952 Act which brought the suit land within the scope of the 1948 Act their rights so preserved came to be governed by the provisions of the 1948 Act and therefore the respondent could not evict them except in the manner prescribed by the provisions of that Act
776 To appreciate the contentions of the parties it is neces sary to trace briefly the history of the relevant provisions
Section 231 of the 1939 Act as amended by the 1946 Act read a No lease of any land situated in any area in which this section comes into force made after the date of the coming into force of this section in such area shall be for a period of less than 10 years and b every lease subsisting on the said date or made after the said date in respect of any land in such area shall be deemed to be for a period of not less than 10 years
 The 1939 Act was repealed by the 1948 Act
Section 881 of the 1948 Act as it stood before the amendment by the 1952 Act read Nothing in the foregoing provisions of this Act shall apply a   b    c to any area within the limits of Greater Bombay or within the limits of the Municipal Borough of Surat and within a distance of 2 miles of the limits such boroughs Section 89 thereof read  1 The enactment specified in the schedule is hereby repealed to the extent mentioned in the fourth column thereof
2 But nothing in this Act or any repeal effected thereby a   b shall save as expressly provided in this Act affect or deemed to affect 777 i any right title interest obligation or liability already acquired accrued or incurred before the commencement of this Act   SCHEDULE I Year NO
Short Title Extent of repeal 1 2 3 4 1939 XXIX The Bombay Ten The whole except sections ancy Act1939
3 3 A and 4 as modified in the following manner
Section 88 of the 1948 Act was amended by the 1952 Act
The relevant part of the amended section reads  1 Nothing in the foregoing provisions of this Act shall apply a b c to any area within the limits of Greater Bombay within the limits of the Municipal Corporations constituted under the Bombay Provincial Municipal Corporation Act 1949 within the limits of the Municipal Boroughs constituted under the Bombay Municipal Boroughs Act 1925 and within the limits of any cantonment   The gist of the provisions in their application to a lease of agricultural land situated within two miles of the limits of the Surat Borough Municipality may be stated thus  Such a lease subsisting on the date of the amending Act of 1946 which came into force on April 11 1946 shall be deemed to be for a period of not less than 10 years
The 1939 Act was repealed by the 1948 Act
Under section 881 c 778 or the 1948 Act the provisions of that Act were not applicable to any area within the municipal limits of the said borough of Surat and within a distance of two miles of the limits of the said borough but the right title and interest of a lessee in such area was preserved under section 8 9 2 b i of the said Act
Section 881 of the 1948 Act among other things was amended by the 1952 Act which came into force on January 12 1953
By the said amendment the 1948 Act was extended to any area within a distance of two miles of the limits of the Surat Borough Municipality
With the result all the provisions of the 1948 Act would be applicable to a lease of agricultural land subsisting in such an area after the amendment came into force
If so such a lease can be terminated only in the manner prescribed by section 14 thereof
What is the effect of this legal position on the facts of the present case The relevant facts on which there is really no dispute may now be stated
The lease deed between the appellants  predecessor and the respondent was executed on May 7 1946 for a period of six years commencing from May 3 1946 that is to say it would expire in the ordinary course on May 2 1952
Sachin State became part of the Bombay State from July 28
After it became part of the Bombay State the 1939 Act as amended by the 1946 Act was extended to that State with the result the lease which would have expired in May 1952 was statutorily extended by another 4 years
that is till May 1956
On December 28 1948 the 1948 Act came into force
That Act repealed the 1939 Act
It also exempted  the lands within the limits of the Surat Borough Municipality and also lands within two miles of the limits of the said Municipality from the operation of the provisions of the said Act
But it saved the right or interest of the lessee which he had acquired under the 1939 Act
When the 1952 Act came into force on January 12 1953 the said lease protected under the saving clause was subsisting
By the said amendment the 1948 Act was made applicable to the land in question which is within two miles of the limits of the Surat Borough Municipality
With the result the interest of the appellants could be terminated 779 only under section 14 of the 1948 Act
On April 23 1951 the respondent gave a notice to the appellants terminating the lease from March 31 1952 and filed the suit for eviction on April 21 1952
But before the suit was disposed of the 1952 Act came into force and by reason of the extension of the 1948 Act to the said land the respondent could not evict the appellants except in the manner prescribed by the 1948 Act
The High Court therefore was wrong in holding that the appellants could not claim the benefit of the provisions of the 1948 Act At this stage another argument advanced by learned counsel for the respondent may also be noticed
The argument is that the saving provision in section 892 operates only if there is no express provision to the contrary but such an express provision is found in section 881 inasmuch as it says that the provisions of sections 1 to 87 will not apply to the area in question
It is further contended that the saving of the appellant s right would be otiose as he could not enforce his right under the Act
A similar argument was advanced but was repelled by this Court in Sakharam alias Bapusaheb Narayan Sanas vs Manikchand Motichand Shah1
There the lands in dispute were situate within two miles of the limits of the Poona Municipal Borough
The question was whether the rights of the appellants as protected tenants were affected by the repeal
This Court held that the provisions of section 881 were entirely prospective and that they applied to lands of the description contained in the said section from the date on which the Act came into force and that they were not intended in any sense to be of confiscatory character
When it was further contended that the right would be illusory as it could not be enforced under the Act this Court pointed out that as there was a right recognized by law there was a remedy and therefore in the absence of any special provisions indicating a particular forum for enforcing a particular right the general law of the land would naturally take its course
This decision is binding on us
We therefore reject this contention
1  780 Even so learned counsel for the respondent contended that in the view taken by the High Court it had become unnecessary for it to give its findings on two of the important issues that arose in the case namely issues 3 and 4 which are as follows  Issue 3
Whether the plaintiff proves that he wants possession for bona fide personal cultivation
Issue 4
Whether the defendant proves that he had not damaged the suit property in view of the decision in Reg
C Suit No 619 of 1950 by the Joint Civil Judge JD Surat
He therefore pointed out that the matter would have to be remanded to the High Court for its decision on the said two points
In view of the supervening circumstances it is not possible to accede to this argument
As pointed out earlier on April 23 1951 the respondent issued the notice on the ground that the tenancy of six years would expire on March 31 1952
But by reason of the 1939 Act the tenancy was statutorily extended till 1956
So the said notice had become ineffective and the respondent would not be entitled to any relief on its basis
It would be open to him to take any appropriate proceedings which the law allows in a proper tribunal
In the circumstances the only course open to us is to set aside the decree of the High Court and to restore that of the Dirstict Judge
The parties will bear their respective costs throughout Appeal allowed


Summary:
The respondent gave notice to the appellants terminating the lease of agricultural land situated within two miles of the limits of the Municipality and filed a suit for eviction
The suit was contested inter alia on the ground that under the provisions of the Bombay Tenancy Act 1939 the defendants had acquired tenancy rights
The civil Judge inter alia held that the 1939 Act was repealed by the Bombay Tenancy and Agricultural Land Act 1948 which did not apply to the suit land as it was within two miles of the limits of the Surat Borough Municipality and decreed the suit
On appeal the District Judge held that the 1948 Act applied to the Suit land and set aside the decree of the trial Court
In second appeal by the plaintiff the High Court held that the suit land was within two miles of the limits of the Municipality and therefore the 1948 Act did not apply to the suit land
On appeal by Special Leave the appellants contended that their rights under the 1939 Act were saved and preserved under section 892 of the 1948 Act with the result that the lease extended to 10 years under the 1939 Act was saved thereunder and by reason of the Bombay Tenancy and Agricultural Lands Amendment Act 1952 which brought the suit land within the scope of the 1948 Act their rights so preserved came to be governed by the provisions of he 1948 Act and therefore they could not be evicted except in the manner prescribed by the provisions of the Act
The respondent contended that the saving provision in section 892 of the 1948 Act operates only if there is no express provision to the contrary and that the saving of the appellant s right would be otiose as he could not enforce his right under the 1948 Act
Heldi Before the suit was disposed of the 1952 Act came into force and by reason of the extension of the 1948 Act to the suit land the respondent could not evict the appellants except in the manner prescribed by the 1948 Act
iiThe respondent s contention must be rejected
There is an express provision found in section 881 of the 1948 Act in as much as it says that the provisions of sections 1 to 87 will not apply to the area in question
iiiAs there was a right recognized by law there was a remedy and therefore
in the absence of any special provisions indicating a 774 particular forum for enforcing a particular right the general law of the land would naturally take its course
The High Court therefore was wrong in holding that the appellants could not claim the benefit of the provisions of the 1948 Act
Sakharam a Bapusaheb Narayan Sanas vs Manikchand Motichand Shah  relied on