Judgment

CHINNAPPA REDDY, J:- In respect of an extent of ten acres and 23 guntas of land in Survey No. 215 of Village Nathare, Haranax, one Tukaram Patla Power was a protected tenant under the provisions of the Bombay Tenancy Act, 1939, as amended by Act 26 of 1946. The landlords, vithal Kulkarni, Vasudeo Kulkarni and Krishnaji Kulkarni gave a notice to Tukaram on 8th March, 1948 under S. 7 (1) of the Bombay Tenancy Act, 1939, alleging that they required the land for their personal cultivation. In Dec. 1948, the Bombay Tenancy Act, 1939 was repealed and replaced by the Bombay Tenancy and Agricultural Lands Act (57 of 1948). Thereafter, on 25th April, 1949, the Kulkarni brothers filed Tenancy Case No. 102 of 1949, before the Aval Karkun to recover possession of the land from Tukaram. The application was dismissed by the Aval Karkun on 29th August, 1949 but in Tenancy Appeal No. 20 of 1950 filed by the landlords, the Collector of South Satara, Sangli, by his order dated 9th May, 1950 directed that possession of the land should be given to the Kulkarni brothers. The landlords accordingly recovered possession of the land on 18th June, 1950. Tukaram died on 31st August, 1951. On 18th April, 1961, Vasudeo Kulkarni executed a deed of conditional sale in favour of Sopan Power in respect of a joint 1/9th share in the land. It was recited in the deed that possession was delivered to Sopan but that was disputed. However, on 27th June, 1962, Sopan executed a deed of recognveyance in favour of vasudeo Kulkarni. On 16th April, 1962, Vithal Kulkarni executed a deed of sale in respect of his 1/3rd share in the land in favour of Bapu Bhau More and Vilas Ganpati More. On 7th July, 1962, Tukarams heirs filed Tenancy Case No. 87 1962 against the Kulkarni brothers and their alienees, under S. 37 and S. 39 of the Bombay Tenancy and Agricultural lands Act alleging that the landlords had ceased to cultivate the lands personally within twelve years from the date of dispossession of the tenant (Tukaram) and, therefore, they were entitled to recover possession of the land. The Aval Karkun made an order in favour of Tukarams heirs on 26th Nov. 1963. The order was confirmed by the Special Deputy Collector on 31st March 1964. The landlords and their alienees preferred a Revision Applications before the Maharashtra Revenue Tribunal. The Revenue Tribunal allowed the Revision Applications on 27th Oct. 1964, and dismissed the application of Tukarams heirs filed under Ss. 37 and 39 of the Bombay Tenancy and Agricultural Lands Act. Tukarams heirs invoked the jurisdiction of the High Court under Art. 226 of the Constitution. The High Court of Bombay by its judgment dated 11th Nov. 1968 allowed the writ Petition, quashed the order of the Tribunal and restored the order of the Aval Karkun as affirmed by the Special Deputy Collector. The three Kulkarni brothers, Bapu Bhau More and vilas Ganapati More, have preferred this appeal by special leave.

2. Shri M. C. Bhandare, learned Counsel for the appellants argued that the right of a protected tenant whose tenancy had been determined and who had been disposessed of the land under Section 39 of the Bombay Tenancy and Agricultural Lands Act was a right which was personal to the tenant himself and, which could not for that reason be exercised by that tenants heirs. He argued that whatever may be the right of the heirs of a protected tenant dying subsequent to the Amending Act of 1956, the heirs of a protected tenant who died before the commencement of the 1956 Amending Act had no right to recover possession from that landlords. He urged that there was a substantial difference between S. 40 of the Bombay Tenancy and Agricultural Lands Act as it stood before and after the 1956 amendment. He submitted that the decision of the Full Bench of the High court of Bombay in Vasant Hariba v. Jagannath Ramchandra (1969) 71 Bom LR 12 applied to cases where the tenant died after the Amending of 1956 and not before. Some other contentions