Judgment

RAY, C. J. :- The question in this appeal by certificate is whether the appellant is entitled to protection of Section 4-B of the Bombay Tenancy and Agricultural Lands Act,1948 hereinafter referred to as the 1948 Act.

2. Section 4-B states that no tenancy of any land shall be terminated merely on the ground that the period fixed by agreement or usage for its duration has expired.

3. The appellant became a tenant of the respondent for a period of five years with effect from 1 March, 1943. The tenancy was in respect of certain agricultural lands belonging to the respondent. The lease contained a clause for renewal for five years. The appellant did not exercise the option of renewal. The lease expired on 28 February, 1948.

4. The respondent by a notice dated 25 October, 1955 terminated the tenancy with effect from 1 April, 1957. The respondent gave another notice to the appellant on 10 June, 1958 without prejudice to the earlier notice and called upon the appellant to deliver possession within 7 days. The respondent on 14 September, 1959 filed a suit against the appellant for possession. The trial Court did not grant a decree for possession. On appeal the High Court also held that the appellant was not liable to be evicted. On appeal, this Court remanded the matter to the High Court for a report on two questions. First, whether the appellant was a protected tenant on 1 March, 1953. Second, if the appellant was a protected tenant on 1 March, 1953 whether the appellant could claim benefit of Section 5 of the Amending Act, 1952. The High Court submitted the report holding that the appellant was a protected tenant on 1 March, 1953 but that the appellant was not entitled to claim the benefit of Section 5 of the Amending Act. 1952. Section 5 of the Amending Act gave certain relief to tenants other than protected tenant.

5. This court affirmed both the finding of the High Court and set aside the judgement of the High Court from which an appeal had been taken to this Court. (see Manekji Mistry v. Maneksha Ardeshir Irani, (1972) 1 SCR 334. This court at the invitaion of the parties directed the High Court to determine whether there was a valid termination of tenancy because there were two issues as to damages yet to be decided.

6. The High Court on remand has held that the appellant was not entitled to any notice and that the appellant was a tenant on sufferance. The issues as to damages are not yet heard.

7. In this appeal, the appellant contends that the appellant is entitled to protection under Section 4-B of the 1948 Act because the appellant is holding over and the tenancy cannot be terminated by efflux of time.

8. The contract of tenancy commenced on 1 March, 1943. It was for a period of five years ending on 28 February, 1948. Under Section 23 (1) (b) of the Bombay Tenancy Act, 1939 as it stood amended in 1946, every subsisting on the date when that section came into force become deemed to be for a period of not less than ten years. The effect of the statutory provision that the appellants lease which would have expired on 28 February, 1948 expired on 28 February, 1953 by reason of the deeming provision in Section 23 (1) (b) of the 1939 Act.

9. The 1948 Act while repealing the 1939 Act did not repeal but modified Section 3, 3-A and 4 of the 1939 Act. These three sections of the 1939 Act deal with protected tenants. The relevant Section for the purpose of this appeal is Section 3-A as modified by the 1948 Act Section 3-A states that every tenant shall, form the eighth day of November, 1947 be deemed to be a protected tenant for the purpose of this Act and his right as such protected tenant shall be recorded in the Record of Rights, unless his landlord has prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant. The landlord in the present case did not make any application as contemplated in Section 3-A of the 1939 Act as modified by the 1948 Act. The result was that