The exclusion of lands from the operation of the Bombay Tenancy and Agricultural Lands Act, 1948, by a notification issued by the State Government under Section 88(1)(d) did not have retrospective effect and could not divest vested tenancy rights acquired and enjoyed by tenants since the coming into force of the Act.

1. This is. an appeal by the defendants and it raises a question of construction of Clause (d) of Sub-section (1) of Section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948.

2. The question has arisen in this way: The plaintiffs, who are respondents in this appeal, filed Civil Suit No. 452 of 1951 in the Court of the Second Joint Civil Judge, J.D., at Baroda to recover possession of lands S. Nos. 115, 118, 119/1, 125 beghas out of S. No. 126 and S. No. 129 of the village Akota, a village in the former State of Baroda, and to recover the amount of Rs. 601 as arrears of rent in respect of the abovementioned lands for the Fasal of Samvat year 2007. The plaintiffs case was that defendant No, 1, for himself and defendant No. 2, had taken these lands on lease for the Fasal of Samvat year 200-1 under a rent note dated the 17th April 1948. By this rent note the defendants had agreed to deliver-possession of the lands to the plaintiffs on the expiry of the agricultural season on Akhatrij of Samvat year 2005 (May 1949). According to the plaintiffs case, the defendants cultivated the lands during the period of the rent note. However, they failed to deliver possession of the lands to the plaintiffs on the expiry of the period of the rent note-and continued to hold over and enjoy the income of the lands. The plaintiffs served the defendants with a notice on the 24th March, 1950, terminating the tenancy of the defendants and demanding possession of the lands on Akhatrij of Samvat year 2007 (9th May 1951) at the end of the cultivation season: The defendants did not comply with that notice and failed to deliver possession of the lands to the plaintiffs. The plaintiffs contention was that the defendants possession of these lands after the Akhatrij of the Samvat year 2007 (9th May 1951) was possession as trespassers. It was upon these contentions that the plaintiffs filed the abovementioned suit No. 452 of 1951 against the defendants.

3. The defendants resisted the suit upon the contention that they were permanent tenants, of the lands mentioned above. In the alternative, they contended that they wore protected tenants of these lands and were entitled to remain in possession for a period of ten years under Section 5, Sub-section (1) of the Bombay Tenancy Act. It was contended by them that upon the merger of the State of Baroda with the Stale of Bombay, the Bombay Tenancy and Agricultural Lands Act, 1948, was applied to the territory of the former Baroda State, that the tenancy rights which were acquired by them under the Act and had vested in them could not be taken away by a notification issued by the State of Bombay under Clause (d) of Sub-section (1) of Section 88 of the Bombay Tenancy Act and that accordingly the Civil Court would have no jurisdiction to try and decide the suit and eject the defendants from these lands.

4. The learned trial Judge held that the defendants had failed to prove that they were permanent tenants or protected tenants of the suit lands. He also held that view of the notification issued by the State of Bombay under Clause (d) of Sub-section (1) of Section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948, the suit lands which were situated within two miles of the Municipal limits of the city of Baroda were excluded from the operation of the Act although they were agricultural lands and accordingly the defendants did not acquire any rights under the Act in respect of these lands. The learned Judge took the view that the tenancy of the defendants was terminated by a notice which was legal and valid. According to the learned Judge, the period of the defendants tenancy expired on the 9th May 1951 and it was from that date that the defendants were called upon to hand over possession of the hands to the plaintiffs. Upon this view of the matter which the learned Judge took, he passed a decree directing the plaintiff No. 2 to recover possession of the suit lands Section Nos. 115, 118, 119/1, 125