The main legal point established in the judgment is the interpretation of the provisions of the Bombay Tenancy Act, including the meaning of 'tenant' and 'eviction', and the retrospective operation of the sections.

BAVDEKAR, J.- Respondent 1 in this appeal had sued the appellant and others in Suit No. 10 of 1938 and obtained a decree for possession of the snit land after removing the house of the appellant, the father of respondents 2 to 4 and respondent 5. The case of the plaintiff in the suit was that the defendants were his ten-ante, but when in the year 1937 he filed a suit, they denied the tenancy and claimed that they were in adverse possession of the land as owners. The plaintiff said that consequently he did not wish to keep the defendants as tenants and had filed the suit for possession for rent and for damages for three years before the date of the suit. The trail Court accepted the case of the plaintiff and gave the plaintiff a decree for possession and also for mesne profits amounting to Rs. 65 before the date of the suit and future mesne profits from the date of the suit till recovery of possession. This decree was reversed by the appellate Court, but it was again restored by the High Court. Respondent 1 then brought the application for execution from which the present appeal arises for recovery of possession of the site which had been let to the appellant, the father of respondents 2 to 4 and respondent 5, after removing their house which was upon the property. The respondents then took up contentions opposing the application for execution under the Small Holders Act and the Tenancy Act among others. These objections were overruled by the learned Judge before whom the execution was going on, and the appeal which was filed by the respondents was dismissed by the learned District Judge of Ratnagiri. Hence he has come in second appeal.

2. The contentions raised by the respondents under the Small Holders Belief Act are not pressed before us. It is contended before us that notwithstanding the decree which had been obtained by respondent 1, the appellant and the other respondents ate entitled to remain in possession of the land because of the provisions of the Bombay Tenancy Act.

3. This Act was enacted in the first instance as Bombay Act XXIX (29) of 1939 and certain flections of the Act which did not include S. 6, which was in the old Act and Ss. 2A, 5, 24(1)(a) came into force in the area in which the site in dispute is situated only on 8th November 1946. The other sections which have been relied upon on behalf of the respondents, viz., Ss. 17, 20 and 21, came into force in the area in which the site is situated on 2nd April 1946, which was after the application for execution was presented but before the learned Judge before whom execution was proceeding made his order on 22nd August 1946, ordering execution to proceed. There have been certain minor alterations even in these sections when the Amending Act of 1946, XXVI (26) of 1946 was passed. But nothing depends upon the alterations made in these sections by the later Act.

4. The contention of the appellant is that even if we ignore for the present those portions of Bombay Act XXIX (29) of 1939 which came into force in the area on 8th November 1946, the appellant and respondents other than respondent 1 had a defence to the application for execution under S. 17, Bombay Tenancy Act. Now, that section reads at present as follows :

"If in any village a tenant is in occupation of A dwelling house built at the expense of such tenant or his predecessor-in-title on a site belonging to his landlord, such tenant shall not be evicted from such dwelling house (with the materials and the Bite thereof and the land immediately appurtenant thereto and necessary for its enjoyment) unless

(a) the landlord proves that the dwelling house was not built at the expense of such tenant or his predecessor-in-title, and

(b) such tenant makes a default in the payment of rent, if any, which be has been paying for the use and occupation of such site."

The section has a proviso in the form of sub-s. (2), but it has no application and may be ignored for the purpose of the present appeal. The learned advoc