JUDGMENT

RAY, J. :— This appeal on special leave is against the judgment and decree made on October 4, 1971 in S.A. No. 313/63 by the High Court of Gujarat whereby it was held that in view of the retrospective effect given by virtue of the notification issued under Sec. 88(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 the provisions of the said Tenancy Act was not applicable in respect of lands within the municipal limits of the city of Baroda and as such the civil court was competent to determine the reasonable rent in respect of the lands in question taken settlement of by the defendant on the basis of the Kabuliyat executed on 2nd June, 1956 for a period of three years from 1956 to 1958.

2. The admitted facts of this case are that the defendant Kashiram Jaiswal, since deceased, took possession of the lands measuring 20 acres 27 gunthas in S.No. 707 of Baroda Kasba situated behind Kirti Mandir in the city of Baroda from the respondent by executing a Kabuliyat dated June 2, 1956 for a period of three years from 1956 to 1958 at an annual rent of Rs. 2225/-. The said Kabuliyat was however not registered. The defendant paid in total a sum of Rs. 970.31 in respect of arrears of rent of the said years 1956-57 and 1957-58. The plaintiff who is a trustee of the temple Kirti Mandir instituted a regular suit No. 143/59 in the court of 3rd Joint Civil Judge, Baroda for recovery of arrears of rent at Rs. 3479.69 setting off the amount paid already. The defence was that the suit was not entertainable in the civil court inasmuch as even though the Tenancy Act ceased to apply on the issue of the notification under Sec. 88(1)(b) of the said Act in respect of lands within the municipal limits of city of Baroda yet the rights of the tenant in respect of the suit land which accrued before the said notification subsisted or in other words the same was not affected by the said notification. It has been further contended that since the Mamlatdar has determined the fair rent in accordance with the provisions of sections 8 and 9 of the said Act at Rs. 375/- and 5 annas lawfully payable in respect of the said land the plaintiff could not recover any amount in excess of the said sum. The trial court held that the Tenancy Act was applicable to this case and since the Mamlatdar has already determined the reasonable rent in respect of the lands in question the civil court was not competent to determine the same once again. The suit was accordingly dismissed. On appeal the District Judge, Baroda dismissed the appeal and affirmed the judgment and decree of the court below. Against this judgment and decree S.A. No. 313/63 was preferred in the High Court of Gujarat. The High Court on considering the decision of this Honble Court in S. N. Kambles case (1966) 1 SCR 618 held that in view of the notification issued under Sec. 88(1)(b) of the said Act the provisions of the Tenancy Act will not apply retrospectively in view of the notification issued under sub-section (1)(b) of Sec. 88 of the Act 30 of 1956 issued on May 21, 1958. The High Court, therefore, framed the following issue :-

"At what rate is the plaintiff entitled to claim rent in respect of the land in occupation of deceased defendant Surajmal Kashiram for the two years 1956-57 and 1957-58 having regard to the rent that may be considered reasonable in the light of the evidence that may be adduced before the court."

And sent the records to the trial court for determination of the said issue on allowing the parties to adduce evidence. The trial court was also directed to return the evidence together with its findings thereon to the High Court of Gujarat. The trial court after considering the evidence adduced by both the parties held that the reasonable rent of the land in question was Rs. 2225/- per annum. With these findings of the trial court the records were returned to the High Court of Gujarat. On 4-10-1971 the High Court of Gujarat allowed the appeal setting aside the judgment and dec