Judgement

RAY, J.:- This appeal is by Certificate against the judgment dated 6 November/6 December, 1962 of the Bombay High Court dismissing the appellants suit filed on 14 September, 1959 against the respondents, inter alia, for possession of suit property.

2. By an indenture of lease dated 16 March, 1944 the respondents became lessees of the appellants for a period of 5 years from 1 March, 1943 in respect of the agricultural lands belonging to Jivanji Jamasji Mistry s Adarian Charities. The appellants terminated the tenancy of the respondents by notice to quit dated 25 October, 1955. The notice to quit was effective on the expiry of 31 March, 1957. The appellants without prejudice to the October, 1955 notice gave another notice to quit dated 10 June, 1958 to deliver possession within 7 days.

3. The respondents contended that they were protected tenants under the Bombay Tenancy Acts 1939 and 1948 and, therefore, the appellants would not be entitled to possession.

4. The trial Court held that after 31 March, 1957 the respondents continued in possession and the appellants allowed the respondents to continue in possession by extending the term of the lease at least for one year up to 31 March, 1958. The trial Court held that the notice dated 25 October, 1955 terminating the tenancy with effect from 31 March, 1957 could not therefore be relied on by the appellants. As to the notice dated 10 June, 1958 the trial Court held that it was not a valid notice and a proper three months notice expiring with the year on 31 March, should have been given by the appellants.

5. On appeal the High Court held that it was not necessary to consider whether the respondents had acquired the status of protected tenants. The High Court held that the lease which was operative from 1 March, 1943 for a period of 5 years was under Section 23 (1) (b) of the Bombay Tenancy Act, 1939 as amended in 1946 deemed to be for a period of not less than 10 years. The lease was therefore effective up to 28 February, 1953. Meanwhile the Bombay Tenancy and Agriculture Lands Act, 1948 came into force on 28 December, 1948. The High Court held that Section 5 of the Bombay Act, 1948 as it originally stood was in terms similar to Section 23 of the 1939 Act but as a result of amendment of Section 5 of the 1948 Act by the Bombay Act XXXIII of 1952 the period of the lease was renewed up to 28 February, 1963 and therefore the appellants could not obtain a decree for possession.

6. Though Section 5 of the 1948 Act as amended by the Bombay Act of 1952 was repealed by Bombay Act XIII of 1956 the High Court held that the tenants had acquired the vested right of protection against termination of tenancy merely on the ground of expiry of the duration fixed by agreement. The High Court said that it was not necessary to decide whether the respondents had acquired the status of protected tenants. The High Court held that by reason of the provisions of Section 5 of the 1948 Act as amended in 1952 the respondents acquired renewed tenancy up to 28 February, 1963 and unless the plaintiff-landlords could show that rights so acquired had ended they could not claim possession.

7. When the appeal came up for hearing before this Court on 13 February, 1970 this Court sent the matter back to the High Court for submitting a report on two questions. First, whether on 1 March, 1953 the respondents were protected tenants. Second, if the respondents were protected tenants on 1 March, 1953 whether on that account the respondents had the right to claim the benefit of Section 5 and other relevant sections of the Bombay Tenancy and Agricultural Lands Act 67 of 1948.

8. The High Court recorded the findings on 27 January, 1971. The High Court recorded the answers that the respondents were protected tenants on 1 March, 1953 and, secondly, the respondents did not have the right to claim the benefit of section 5 or other relevant sections of the Bombay Tenancy and Agricultural Land Act, 1948. The respondents challenged