The provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. Act No. 67 of 1948) do not apply to the tenancy of land within two miles of the limits of the Surat Borough Municipality, but the rights of the tenant under the Bombay Tenancy Act, 1939 (Bom. Act No. 29 of 1939) are saved by the 1948 Act.

Judgment

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.

2. The appellants are the legal representatives of one Parbhubhai Ratanji. The suit property is agricultural land situated 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 Parbhubhai Ratanji for a period of six years. On July 28, 1948, Sachin State became part of the State of Bombay. From that date the Bombay Tenancy Act, 1939, hereinafter 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, 1952. 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 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 The learned Civil Judge, inter alia, held that the 1939 Act was repealed by the 1948 Act and that the latter Act did not apply to the suit land, as it was within two miles of the limits of the Surat Borough Municipality.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.

3. 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 the right of the appellants under the 1939 Act was preserved under S. 89(2) 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.

4. To appreciate the contentions of the parties it is necessary to trace briefly the history of the relevant provisions. Section 23 (1) 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 made after t