J. B. MEHTA, J. ( 1 ) THE defendants-tenants in this appeal challenge the eviction decree which has been passed by the learned Single Judge in favour of the plaintiffs-purchasers of the three suit lands. There were other companion matters which have not come up in appeal and in this appeal we are concerned only with the purchasers suit for eviction of the defendants-tenants The suit lands originally bore S. Nos. 45 and 46 which are now divided into new 5 No. 46 and New 5. No. 47 and 50 respectively of village Dunthal in Chorasi Taluka Surat District and there is no dispute that they were situated within the distance of two miles of the limits of Surat Borough Municipality as on December 28 1948 when the Bombay Tenancy and Agricultural Lands Act 1948 hereinafter referred to as `the Act or the 1948-Act came into force. As far as old S. No. 45 was concerned there was a mortgage with a lease back on March 17 1880 and that original owner Mulla Alibhai Mulla Habibulla by the sale deed dated March 20 1889 sold the same to the Acharya of Swaminarayan Temple Vadtal for Rs. 1050/by Ex. 164. As far as other S. No. 46 was concerned in that case also there was a mortgage with lease back dated December 24 1882 and by the sale deed dated March 20 1889 at Ex. 165 that old S. No. 46 was also sold by its owner Patel Vallabh Bhana to the then Acharya of Swaminarayan Temple Vadtal. By Ex. 485 by a registered lease dated January 23 1890 for 51 cultivating seasons (S. Y. 1946 to 1997) in respect of old S. Nos. 45 and 46 the defendants ancestors Bhaga Govind and one Jaga Lallu became lessees. Thereafter by the lease dated April 21 1901 at Ex. 163 executed by Bhoga Govind in respect of both the S. Nos. he became lessee for 40 years on annual rent of Rs. 115/and that lease was to expire on April 20 1941 The Bombay Tenancy Act 1939 came into force in this area on April 1 1941 The agreed period of lease expired and the tenant as averred by the plaintiffs in the plaint continued to remain in possession. he became lessee for 40 years on annual rent of Rs. 115/and that lease was to expire on April 20 1941 The Bombay Tenancy Act 1939 came into force in this area on April 1 1941 The agreed period of lease expired and the tenant as averred by the plaintiffs in the plaint continued to remain in possession. There was a registered lease by the Acharya in favour of the defendants Vasanji Keval and Ranchhod Morar for five years on annual rent of Rs. 115/and land revenue on January 12 1942 Ex. 174 in respect of the two old S. No. which had been given the three new S. No. as aforesaid. The Bombay Tenancy Act 1939 had been amended on November 8 1946 and the amended sec. 23 provided for statutory extension of the lease by making it 10 years lease. The Acharya had after the resolution of the committee after public advertisement entered into an agreement for sale of the suit lands to the plaintiffs on August 4 1947 for Rs. 42270/and the sale deed was executed at Ex. 162 on September 25 1947 in favour of the plaintiffs purchasers subject to the tenancy rights of the defendants. The tenants bad applied while on August 14 1947 for mutation of these names as permanent tenants while the plaintiffs purchasers had terminated the lease by a notice at Ex. 156 dated October 19 1947 under sec. 7 of the 1939 Act on the ground of personal cultivation demanding possession on March 31 1949 A reminder notice was again served at Ex. 156a on June 18 1948 demanding possession on expiry of March 31 1949 As per the Mamlatdars order the defendants names had been entered in the revenue records. The State first confirmed this order on 28-1-49 but by the final order of the State Government dated December 16 1969 the original order was treated as ineffective and not binding to the parties and all concerned were left to their respective position as on August 13 1947 The Tenancy Act of 1948-the present Act came into force on December 28 1948 and originally in view of the exemption under sec. 88 (1) (c) the provisions of secs. 1 to 87 did not apply to the suit lands within two miles of Surat Municipal limits. This exemption was removed and secs. 88 (1) (c) the provisions of secs. 1 to 87 did not apply to the suit lands within two miles of Surat Municipal limits. This exemption was removed and secs. 1 to 87 became applicable by the Bombay Amendment Act 33 of 1952 which came into force on January 12 1953 There was a further amendment in the Bombay Tenancy Act 1948 by the Act 13 of 1956 on August 1 1956 also during the pendency of the suit. The plaintiffs present suit was filed on April 29 1949 The trial Court had decreed the suit for possession with mesne profits while the learned Assistant Judge had dismissed the suit. The second appeal was allowed by the learned Single Judge as he hold that the defendants were not protected under the Tenancy Act and that the civil Courts could decide the present eviction suit and the controversy whether the defendants were permanent tenants and whether they were protected. On merits the learned Single Judge reversed the finding as regards the Benami character of the purchase by holding that the sale in favour of the plaintiffs-purchasers was neither nominal and sham nor without consideration. The learned Single Judge further held that the defendants were not permanent tenants and as the suit. notice terminating their tenancy was held to be legal and valid the eviction decree was passed against the defendants. Therefore the defendants have filed the present appeal. ( 2 ) MR. Vakil in this appeal challenged the finding of the learned Single Judge on the question of the jurisdiction of the Civil Court to pass such an eviction decree against these tenants by holding that they were not protected under the Tenancy Act even when it became applicable on January 12 1963 in respect of the suit lands. On merits Mr. Vakil challenged the three findings as the learned Single Judge could not reverse the pure finding of fact as regards the Benami character of the sale deed taken by the plaintiffs purchasers. He also challenged the findings that the defendants were not permanent tenants and that their tenancy was validly terminated. On merits Mr. Vakil challenged the three findings as the learned Single Judge could not reverse the pure finding of fact as regards the Benami character of the sale deed taken by the plaintiffs purchasers. He also challenged the findings that the defendants were not permanent tenants and that their tenancy was validly terminated. As we are holding that the defendants should succeed on the short ground that the Civil Court had no jurisdiction to pass the eviction decree when the Tenancy Act became applicable to the suit lands protecting these tenants from January 12 1953 by Act 33 of 1952 it would not be necessary to go into the other findings as to the merits. ( 3 ) THE learned Single Judge has disposed of this question relying on the decision in S. N. Kamle v. Sholapur Municipality A. I. R. 1966 S. C. 538 by the Full Bench of five Judges. In that decision their Lordships had considered the effect of the words save as expressly provided in this Act in sec. 89 (2) (b)in respect of lands which were exempted from the provisions of secs. 1 to 87 by the express enactment of sec. 88 (1) (a) in respect of lands held on lease from a local authority. Their Lordships in terms held that the clause nothing in this Act shall affect or be deemed to affect in sec. 89 (2) (b) was qualified by the words save as expressly provided in this Act. Therefore if there was an express provision in the 1948-Act that would prevail over any right title or interest etc. acquired before its commencement. Those words save as expressly provided in this Act qualify the words any repeal effected thereby and therefore even in the case of the repeal of the provisions of 1939act if there was an express provision which affected any right title or interest acquired before the commencement of the 1948-Act that would also not be saved. Their Lordships pointed out that sec. 88 was clearly an express provision which took out such leases of land held from a local authority from the purview of secs. 1 to 87 of the 1948-Act. One of the express provisions was sec. Their Lordships pointed out that sec. 88 was clearly an express provision which took out such leases of land held from a local authority from the purview of secs. 1 to 87 of the 1948-Act. One of the express provisions was sec. 31 itself which recognised protected tenants and if that section was to be treated as non-existent so far as such lands held on lease from a local authority were concerned it followed that there can be no protected tenants of lands held on lease from a local authority under the 1948-Act. Therefore even though there was no such express provision destroying or taking away the rights of protected tenants acquired under the 1939-Act in respect of such lands held on lease from a local authority. Their Lordships held at page 542 that the effect of the express provision contained in sec. 88 (1) (a) clearly was that sec. 31 must be treated as non-existent so far as lands held on lease from a local authority were concerned. Their Lordships in terms observed that no express provision was necessary stating that there would be no protected tenants after 1948. Act came into force with respect to lands held on lease from a local authority because that was the plain effect of the provisions contained in secs31 88 and 89 (2) (b) of the 1948-Act. Their Lordships further pointed out at the end that even though sec. 4a took the place of sec. 31 after the amendment of 1956 this amended sec. 4a did not apply to such lands held on lease from a local authority because what was said in the context of sec. 31 would equally apply to sec. 4 and therefore the tenants could not contend that they were protected tenants under the 1939 Act and were entitled to the benefit of sec. 31 or amended sec. 4a in view of the fact that sec. 88 (1) (a) was the express provision which took away interest of protected tenants under the 1939-Act in actual effect. Their Lordships overruled the decision in Sakharams case (Sakharam v. Manikchand) AIR 1963 S. C. 354 where full effect was not given to the words save as expressly provided in this Act appearing in sec. 89 (2) (b) and it was not noticed that there could be no protected tenants after the 1948-Act came into force. The said sec. Their Lordships overruled the decision in Sakharams case (Sakharam v. Manikchand) AIR 1963 S. C. 354 where full effect was not given to the words save as expressly provided in this Act appearing in sec. 89 (2) (b) and it was not noticed that there could be no protected tenants after the 1948-Act came into force. The said sec. 88 (1) in its application to such leases from local authority would have no meaning unless it affected rights of protected tenants contained in sec. 31. Therefore more was read in sec. 89 (2) (b) than was justified when it was held that the provisions of sec. 88 (1) (a) (b) and (c) were entirely prospective and were not intended to be of a confiscatory character to destroy the rights acquired under the 1939-Act as the protected tenants. Their Lordships in terms observed that the Legislature might have well thought that the status of protected tenant should not be given to lessees of lands from a local authority in the interest of the general public and therefore took away that interest by the express enactment of sec. 88 (1) (a ). The status was after all conferred by the 1939act and it could be equally taken away by the 1948-Act. Their Lordships further pointed out that sec. 88 (1) (a) applied not only to lands held on lease from local authority but also from the State and one can visualise the situation where the State might need to get back lands leased by it in public interest. Therefore the express provision was made in sec. 88 (1) (a) with respect to leases from a local authority or the State who had become protected tenants under the 1939-Act. To that extent their Lordships relied upon the decision in Mohanlal Chunilal Kotharis case (Mohanlal Chunilal Kothari v. Tribhovan Tamboli) A. I. R. 1963 S. C. 358 where it was held that sec. 88 (1) (d) must be applied retrospectively for unless that was done that provision would be rendered completely ineffective. Their Lordships however corrected the observation even in Mohanlal Chunilal Kotharis case by holding that this retrospective effect was not only upto 1948 but even so as to destroy even the rights acquired under the 1939 Act. Further proceeding their Lordships pointed out that not only sec. 88 (1) (d) applied in the future but even sec. Their Lordships however corrected the observation even in Mohanlal Chunilal Kotharis case by holding that this retrospective effect was not only upto 1948 but even so as to destroy even the rights acquired under the 1939 Act. Further proceeding their Lordships pointed out that not only sec. 88 (1) (d) applied in the future but even sec. 88 (1) (a) (b) (c) also applied in the future and still all these provisions applied retrospectively so as to destroy the rights acquired even under the 1939-Act. Therefore this decision clearly settles the legal position as to the true construction of these two relevant provisions in sec. 88 (1) (a) to (d) and sec. 89 (2) (d) as it categorically lays down that the effect is to take away rights which had accused to the tenants even under the 1939-Act and therefore they are retrospective not only upto the date of 1948-Act but so as to affect even the rights acquired under the 1939-Act. No doubt the decision is in the context of lands held from a local authority under sec. 88 (1) (a) and in the context of claim of protected tenancy under sec. 31 but the ratio is capable of wider application. ( 4 ) WE cannot agree with Mr. Vakil that Kamles case should be restricted only to lands leased by local authority or by the State under sec. 88 (1) (a) or that the decision was only in the context of rights of protected tenant merely because sec. 31 or sec. 4a was specifically referred to. The ratio is to the effect that Sakharams case (A. I. R. 1963 S. C. 354) was overruled so far as sec. 88 (1) (a) (b) (c) were held to be prospective and not retrospective and so far as Mohanlal Chunilal Kotharis case (A. I. R. 1963 S C. 358) was concerned it also wrongly assumed that the retrospective effect was only upto 1948 and that rights acquired under 1939-Act were not destroyed. In the wider public interest the object of the exemption was examined as it would be necessary to get back the leased lands and therefore the retrospective effect was given to this widest extent. Therefore on a parity of reasoning even in case of such lands within the limits of two miles of Surat Municipal Borough which attracted exemption under sec. Therefore on a parity of reasoning even in case of such lands within the limits of two miles of Surat Municipal Borough which attracted exemption under sec. 88 (1) (c) on the coming into force of this Act on December 28 1948 in view of the express terms of sec. 88 (1) (c) all the rights of the tenants whether as protected tenants or otherwise which were acquired even under 1939-Act were retrospectively destroyed. Therefore Mr. Vakil could not rely on the decision in Hiralal v. Nagindas A. I. R. 1966 S. C. 367 for invoking the rights even under the Amended sec. 23 of the 1939 Act or the corresponding provisions of sec. 5 of the 1948 Act or sec. 4b as amended after 1956 because this decision had in terms followed Sakharams decision (A. I. R. 1963 S. C. 354) which had held the provisions of sec. 88 (1) as clearly prospective and not of any confiscatory character so as to destroy rights acquired under the 1939-Act and which had now been expressly overruled in Kamles case. That decision in Hiralals case had considered the relevant provisions. It pointed out that sec. 23 (1) of 1939 Act which was amended by the 1946 Act provided as under : (A) no lease of any land situated in any area in which this section comes into force made after the date of coming into force of this section in such area shall be for a period of less than 10 years; and (b) every lease subsisting on the said daze or made after the said date in respect of any land in such area shall to deemed to be for a period of not less than 10 years; "sec. 88 (1) (c) of the 1948 Act before this amendment by the 1952-Act provided as under :"nothing in the foregoing provision of this Act shall apply (a ). . . . . . . . . . . . (b ). . . . . . . . . . . . (c)to any area within the limits of Greater Bombay or within the limits of the Municipal Borough of Surat. . . . and within a distance of two miles of the limits of such boroughs. . . . "the relevant portion of the amendment in 1952 was that sec. . . . . . . . . . . . (c)to any area within the limits of Greater Bombay or within the limits of the Municipal Borough of Surat. . . . and within a distance of two miles of the limits of such boroughs. . . . "the relevant portion of the amendment in 1952 was that sec. 88 (1) (c) was amended to read as under:"nothing in the foregoing provisions of this Act shall apply (c) to any area within the limits of the Municipal Corporations constituted under the Bombay Provincial Municipal Corporations Act 1949 within the limits of Municipal Boroughs constituted under the Bombay Municipal Boroughs Act 1 925 and within the limits of any cantonment. . . . . "their Lordships pointed out that the gist of the provisions in their application to a lease of agricultural land situated within two miles of the limit of the Surat Borough Municipality may be stated as follows :such a lease subsisting on the date of the amending Act of 1946 shall be deemed to be for 2 period of not less than 10 years. Then sec. 88 (1) (c) exempted this land from the provisions of secs. 1 to 87. The saving provision made in the repealing sec. 89 (2) (b) (i) preserved right title and interest by the lessee in such area. Sec. 88 (1) was however amended by 1952 Act on July 12 1953 and by that amendment the 1948-Act was extended to any area within a distance of two miles of the limits of Surat Borough Municipality. With the result all the provisions of the 1948-Act would be applicable to a lease of agricultural land subsisting in such an area after the amendment came into force. If so such a lease can be terminated only in the manner prescribed by sec. 14 thereof. Therefore even though the landlord had terminated the lease with effect from March 31 1952 by giving a notice on April 23 1951 the suit was disposed of the 1952-amendment Act had come into force and by reason of the extension of the 1948 Act to the suit land the landlord could not evict tenants except in the manner prescribed by the 1948-Act. Therefore it was held that the High Court was wrong in holding that the tenants could not claim benefit of the provisions of 1948-Act. Therefore it was held that the High Court was wrong in holding that the tenants could not claim benefit of the provisions of 1948-Act. This decision would otherwise have clinched the issue but as we have earlier pointed out that it was based on the overruled decision in Sakharams case. Therefore as per the decision in Kamles case it must be held that in such leases which were exempted under sec. 88 (1) (c) even within two miles of Surat Borough Municipality before 1952 Amendment Act there could be no assumption that rights as a protected tenant under the 1939-Act were still preserved and were not destroyed retrospectively as the decision to the extent it thus rests on Sakharams aforesaid ratio would be affected by Kamles decision. We would however clarify at this stage that this decision also considers the effect of the extension of the Act to this area within the two miles limit of Surat Borough Municipality by the amendment made in 1952-Act and so far as that amendment is concerned their Lordships have categorically held at page 369 that after this amendment came into force on January 12 1953 all the provisions of 1948-Act would be applicable to the leases of agricultural lands subsisting in such area and such a lease would have to be terminated and the tenant would have to be evicted only in the manner prescribed by 1948-Act. Mr. Oza would be right that although Kamles decision proceeds on consideration of sec. 31 and corresponding sec. 4a after 1956 Amendment the same ratio would be applicable even so far as the rights of tenant are concerned under sec. 5 of the 1948 Act which corresponds to the amended sec. 23 of the 1939-Act. And even the rights of such tenants to claim extension of the statutory period of tenancy by claiming the status of irremovability would be destroyed not only from the date of the 1948-Act but even so far as the right which was acquired under the amended sec. 23 of the 1939-Act was concerned. That question however need not detain us any longer because in Maneklal Mistry v. M. A. Irani. A. I. R. 1972 S C. 161 their Lordships have in terms pointed out the distinction between the rights of a protected tenant under sec. 31 which could be terminated under sec. 14 and the rights of a tenant under sec. That question however need not detain us any longer because in Maneklal Mistry v. M. A. Irani. A. I. R. 1972 S C. 161 their Lordships have in terms pointed out the distinction between the rights of a protected tenant under sec. 31 which could be terminated under sec. 14 and the rights of a tenant under sec. 5 of the 1948-Act or the amended sec. 23 (1) of the 1939 by which there was a statutory security of tenure by conferring only status of irremovability by extending the term under the statute. The protected tenants had an unlimited security as against the limited security given to a tenant under sec. 5. Their Lordships however categorically held at page 167 that a protected tenant could not advance the claim as ordinary tenant under sec. 5. A5 the defendants were protected tenants under the 1939-Act and on which there is no dispute between the parties it is not open to Mr. Vakil to advance a claim under sec. 5 Therefore at this stage we should proceed on the footing that the effect of Kamles decision is that so far as these lards within two mile limit of Surat Borough Municipality were concerned by reason of specific exemption under sec. 88 (1) (c) when the 1948-Act came into force nothing in secs. 1 to 87 was applicable and therefore the defendants rights as protected tenants or otherwise to claim any protection under the acquired rights under the 1939-Act had been destroyed. ( 5 ) EVEN so we will have to consider the effect of the 1952 Amendment which came into force on January 12 1953 as to whether it conferred protection on these tenants even while this litigation was pending. Mr. Vakil vehemently relied on the aforesaid decision in Hiralals case (AIR 1966 S. C. 367 ). But as we earlier pointed out that decision was in terms based on the overruled reasoning in Sakharams case and to the extent it was based on that overruled decision that reasoning cannot be invoked by Mr. Vakil. Besides when 1952-Act came into force there was a statutory amendment in sec. 88 (1) (c) and there was no question of the effect of the repeal which was made of the 1939-Act when the 1948act came into force on December 28 1948 which is to be found in sec. 89 (2) (b) (i ). Vakil. Besides when 1952-Act came into force there was a statutory amendment in sec. 88 (1) (c) and there was no question of the effect of the repeal which was made of the 1939-Act when the 1948act came into force on December 28 1948 which is to be found in sec. 89 (2) (b) (i ). This question has to be answered on the footing as to what is the effect of this amendment to the pending litigation of-course bearing in mind that the effect of this amendment was stated to be in Hiralals case that the 1948-Act became applicable to leases of agricultural lands subsisting in this area and so the tenants could claim benefit of the provisions contained in secs. 1 to 87 even in a pending suit. In Ishvarlal Almaula v. Motibhai A. I. R. 1966 S. C. 459 their Lordships had to consider this question in the context of the land in the town of Broach where the 1956 sought to restore to the tenants protection of 1948. Act as originally enacted. By 1956 Amendment Act while a suit for possession was pending sec. 88 (1) (c) was repealed as it stood amended by the 1952 Amendment Act and the effect was to restore to the tenants the protection of the 1948-Act in these areas. No doubt there it was sec. 43c proviso which expressly provided for such retrospective restoration but while considering the effect of these provisions at page 466 their Lordships in terms laid down a principle of statutory construction that such amended statute which substituted new material in sec. 88 and sec. 88 (a) to (d) for the old sec. 88 must be regarded as a repealing enactment to which sec. 7 of the Bombay General Clauses Act would apply. Therefore unless different intention appeared clearly as contemplated by sec. 7 the amendment would not affect pending litigation. Their Lordships held that so far as the proviso to sec. 43c was concerned which stated that the rights acquired by the tenant under the 1948 Act on December 29 1948 were not deemed to be affected by the 1952 amendment Act it clearly saved the rights acquired by the 1948-Act before 1952-Act was enacted. Their Lordships further pointed out that on the 1948-Act being enacted the tenants were entitled to the diverse rights. Their Lordships further pointed out that on the 1948-Act being enacted the tenants were entitled to the diverse rights. The right to claim that every contractual tenancy was statutorily extended for a period of 10 years the right to claim that tenancy may not be determined otherwise than in circumstances mentioned in sec. 14 and in case of a protected tenant subject to the restrictions imposed by sec. 34 that he shall not be deprived of possession otherwise than by an order under sec. 29 (2 ). These and other rights having been restored to the tenants retrospectively from the date of the 1952 Amendment Act by virtue of the express provisions made in proviso to sec. 43c the tenant even in a pending suit could raise a defence that he was entitled to the rights of a tenant or a protected tenant. Their Lordships approved the ratio of the Full Bench of the Bombay High Court in Maganbhai Jethabhais case 60 Bom. L R. 1383 where the Bombay High Court held that the proviso to sec. 43 afforded protection to the tenant if the tenant bad the protection of the Act of 1948 as originally enacted notwithstanding that the protection was taken away by the 1952 Amendment Act and that the protection of that proviso under sec. 43c must be given in cases where there was claim in a pending litigation if the suit was not finally disposed of. This decision clearly settles the legal position that such amendment statute as 1952 with substituted new sec. 88 (1) (c) for the old sec. 88 (1) (c) by making applicable the provisions in secs. 1 to 87 to these lands situated within the two miles limit of the Surat Municipal Borough and must be regarded as a repealing enactment to which sec. 7 of the Bombay General Clauses Act would be attracted. We would have therefore to answer the material question as to which is the law which is to be applied to the pending litigation by finding out whether a different intention appeared in this context when the protection of the Tenancy Act of 1948 was extended to tenants of these lands where originally the Legislature had given an exemption under the 1948 Act. ( 6 ) MR. ( 6 ) MR. Oza vehemently argued that this question can be decided only by referring to the terms of the Amending Act and not by looking to the provisions as amended. On first principle this contention is thoroughly misconceived as the Amending Act had never any independent existence. The amendment is written with the same pen and ink and goes into the original text and that is why we will have to look to the amended law as such to final out whether a different intention is disclosed so as to affect even pending litigation. In Indira Sohanlal v Custodian of Evacuee Property A. I. R. 1956 S. C. 77 at page 83 their Lordships reiterated the ratio laid down in State of Punjab v. Mohar Singh. A. I. R. 1955 S. C. 84 in the context of the corresponding sec 6 of the Central General Clauses Act and in terms laid down that the line of enquiry would be not whether the new Act expressly kept alive old rights and liabilities but whether it manifested an intention to destroy them Sec. 6 would be applicable in such cases of a repeal of enactment followed by a fresh legislation unless the new legislation manifested an intention incompatible with or contrary to the provisions of the section. Their Lordships in terms pointed out that such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law. There is equally no substances in Mr. Ozas contention that there must be an express provision for destroying old rights or for affecting pending litigation. That is not a necessary requirement even though in Ishvarlal Almaulas ease their Lordships found such an express provision in the proviso to sec. 43c. Their Lordships had approved the Full Bench decision in Maganbhais case where the ratio was categorical that intention to affect pending litigation may be found from express language or if there is necessary intendment to that effect. 43c. Their Lordships had approved the Full Bench decision in Maganbhais case where the ratio was categorical that intention to affect pending litigation may be found from express language or if there is necessary intendment to that effect. The Full Bench had followed in this context the decision in Hutchison v. Jauncey (1950) 1 K R. 574 by a strong Bench of the Court of Appeal in England by Evershed M. R. Cohen L. J. and Asquith I. J. who had taken the view that looking to the peculiar character of the legislation like the Landlord and Tenant Rent Control Act the Court should give retrospective effect to the pending action. The landlords suit was dismissed and it was held that the tenancy was protected. The Court of Appeal had at pages 578 and 579 in terms taken the view that even on settled principles of interpretation of statutes without recourse to section corresponding to sec. 7 of the Central Clauses Act when the law was altered during the pendency of the action the rights of the parties were to be decided according to the law as it existed when the action was begun unless the new statute showed a clear intention to vary such rights. The Court of Appeal however in terms held that if the necessary intendment of the Act was to affect pending causes of action the Court would give effect to the intention of the legislature even though there was no express reference to pending actions. The Court of Appeal took into consideration the definition of the word tenant in Rent Restriction statute where even a tenant whose lease is terminated by the landlord and who continued in occupation was considered as tenant for claiming protection of the relevant sec. 9. It provided in clearest terms that if it applied to the relevant tenancy then under the provisions of the Rent Restriction Act the Court would say that it would not make an order for possession save in the specified circumstances. 9. It provided in clearest terms that if it applied to the relevant tenancy then under the provisions of the Rent Restriction Act the Court would say that it would not make an order for possession save in the specified circumstances. The learned Judges pointed out that the answer to the relevant question as to what was the law applicable to such pending suits whether one in force at the date of the institution of the suit or one in force at the date of the hearing or the date of the passing of the decree had to be found out by going to the relevant terms of the statute and if there was such prohibition on the Court passing decree for possession in respect of land held by such tenants who are intended to be protected there was necessary intendment to give retrospective effect to pending suits. Therefore the pending suits were intended to be affected by alteration of law subsequent to the date of the institution of the suit in such a context. In view of this settled legal position the Full Bench had in terms observed at page 1391 that the relevant question which had to be posed in such context was as to the point of time at which the protection was sought to be given. The Court must always consider the class of cases which were intended to be covered by this protective umbrella created by the Legislature. Their Lordships also considered that the intention of the legislature was to protect such tenants as those areas were initially excluded from the operation of the Act and at a later stage were deemed to be fit to heed protection and therefore the general object of the Legislature was to give a protection with retrospective effect. The Full Bench further pointed out that it was inclined to agree with the view that when the legislature was taking away a statutory exemption created by it there was no question of any vested rights being affected because none had any vested right to any statutory exemption being continued on the statute as held in Abbott v. Minister for Lands (1895) A. C. 425. Therefore even though Ishvarlal Almaulas case is decided on the basis of the proviso to sec. Therefore even though Ishvarlal Almaulas case is decided on the basis of the proviso to sec. 43c being express provision giving retrospective effect even to pending litigation by restoring the rights to the tenants with retrospective effect from the date of 1952-Amendment the ratio of this decision is categorical that retrospective effect in a pending litigation can be in all cases where such is the necessary intendment of the legislature looking to the character of the statute and the relevant factors. ( 7 ) IN such a context we should always bear in mind some of the settled principles of construction which would be helpful to arrive at the legislative intention. One such principle is already indicated by the Court of Appeal as to the character of such benevolent legislation like Rent Restriction Act which is to protect tenant from the mischief of eviction. The legislature in such cases would be not only widening definition of tenant but also enunciating its legislative decision which would have to be applied by the Court as an absolute prohibition to any decree of eviction being passed even in a pending suit when it lays down in the statute a bar against the decree being passed. Looking to the mischief which was sought to be suppressed by the legislature it would be frustrating the very object of the legislature if the protection intended by the legislature is not made available to tenants in a pending litigation. This is why in such cases the law at the time of the passing of the decree would become the relevant law in view of the legislative decision which would be evident from such language which would make the point as the relevant point of time and the law on the date of the institution of the suit would not be material in that context. The Court would have to take notice of the alteration in law and would have to mould its decree accordingly even in a pending suit. We find a host of high authorities in this connection for treating such amendment conferring protection to the tenant as being applicable even to pending suits. An identical question had arised in Mohanlal Chunilal Kotharis case A. I. R. 1963 S C. 358 at page 361. We have already considered this decision in the context of interpretation of secs. We find a host of high authorities in this connection for treating such amendment conferring protection to the tenant as being applicable even to pending suits. An identical question had arised in Mohanlal Chunilal Kotharis case A. I. R. 1963 S C. 358 at page 361. We have already considered this decision in the context of interpretation of secs. 88 and 89 and to what extent it was overruled by Kamles case. This decision however rests on the second ground which is material for our decision that the High Court had not noticed that the exemption notification which was issued under sec. 88 (1) (d) exempting that land from the provisions of secs. 1 to 87 of the 1948 Act on April 24 1951 was cancelled by the State Government by the subsequent notification dated January 12 1953 Therefore when the judgment of the lower appellate Court was rendered the position in fact and law was that there was no notification under clause (d) of sec. 88 (1) in operation so as to make the land in question immune from the benefits conferred by the Tenancy law. In other words the tenant could claim the protection afforded by the law against the eviction on the ground that the term of the lease had expired. Their Lordships also observed that there was no substance in the contention that vested rights accrued to the landlord were affected and that the subsequent notification could not take away rights which had accrued by the earlier notification. Their Lordships pointed out that if the landlord had obtained effective decree and had succeeded in ejecting the tenants as a result of that decree which may have become final between the parties that decree could not have been reopened and the execution taken thereunder could not have been recalled. But it was during the pendency of the suit at the appellate stage that the second notification was issued canceling the first and therefore the Court was bound to apply the law as it stood on the date of the judgment. In such a case there was no question of taking away any vested rights in the landlord. But it was during the pendency of the suit at the appellate stage that the second notification was issued canceling the first and therefore the Court was bound to apply the law as it stood on the date of the judgment. In such a case there was no question of taking away any vested rights in the landlord. Therefore even though the High Court had not noticed the alteration of law in this connection the conclusion was confirmed on this ground that the tenants could not be ejected because of this alteration of law during the pendency of the litigation. Their Lordships in terms held that if the tenants can take advantage of the provisions of the Act it was apparent that such a suit for possession against the tenant would lie in the Revenue Court and not in the Civil Courts and the Civil Court would have no jurisdiction to try the suit and the suit would have to be dismissed. This decision has completely concluded the question except for the contention of Mr. Oza that it was a case of a fresh notification under sec. 88 (1) (d ). Whether the lands are taken out of the operation of the Tenancy Act by executive notification issued under sec. 88 (1) (d) or by statutory operation of sec. 88 to (c) itself the Court would have to take notice of the alteration in law. As laid down by their Lordships in Hiralals ease the effect of the 1952 amendment Act in respect of these very lands within the two miles of Surat Municipal Borough was held to be to protect tenants and that they could not be evicted except in the manner prescribed by the Act. In Shah Bhojraj Oil Mills v. Subhash Chandra A. I. R. 1961 S. C. 159 an identical question had arisen in the context of sec. 12 (1) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 Their Lordships kept open the wider question as to the effect of secs. 50 and 51 the saving provisions. Their Lordships construed only plain terms of sec. 12 (1) by reference to the definition of the term tenant which in such rent restriction statute Includes not only tenant whose tenancy subsisted but even any person remaining after the determination of the lease in possession with or without the assent of the landlord. 50 and 51 the saving provisions. Their Lordships construed only plain terms of sec. 12 (1) by reference to the definition of the term tenant which in such rent restriction statute Includes not only tenant whose tenancy subsisted but even any person remaining after the determination of the lease in possession with or without the assent of the landlord. Their Lordships held that such a statutory tenant was by the express language of sec. 12 (1) entitled to the protection of the rule of decision enunciated by the legislature that the landlord is not entitled to recover possession. Their Lordships pointed out that sec. 12 (1) enacted that the landlord shall not be entitled to recover possession and that no suit shall be instituted by the landlord to recover possession. The point of time when the sub-section would operate was when the decree for recovery of possession would have to be passed. Therefore the language of sec. 12 (1) was such that it clearly affected pending suits which could never be decreed after the section had come into operation. Their Lordships further relied on the ordinary rule of construction that substantive rights should not be held to be taken away except by express provision or clear implication but many Acts though prospective in form have been given retrospective operation if the intention of the legislature was apparent. That is more 60 when the Acts were passed to protect the public against some evil or abuse. (See Craies on Statute Law 5 Edn. p. 365 ). Therefore as per the settled legal principles we would have to hold that there was such necessary intendment of the legislature especially looking to the character of the statutory amendment. The necessity was felt to bring these lands within the protective umbrella of the Act even though initially when the 1948-Act came into force exemption was granted. The legislature took away this exemption in respect of these relevant lands by amendment. Therefore the mischief which the Legislature intended to remedy could be suppressed only by giving cover of the protective umbrella even in respect of pending litigation. There is equally no substance in Mr. Ozas contention that the definition of tenancy in sec. 2 (17) of the Act envisages the subsistence of relationship of landlord and tenant. Therefore the mischief which the Legislature intended to remedy could be suppressed only by giving cover of the protective umbrella even in respect of pending litigation. There is equally no substance in Mr. Ozas contention that the definition of tenancy in sec. 2 (17) of the Act envisages the subsistence of relationship of landlord and tenant. Sec. 2 (18) defines tenant as meaning a person who holds land on lease and includes : (A) a person who is deemed to be a tenant under sec. 4 (b) a person who is a protected tenant and (c) a person who is a permanent tenant and the word landlord shall be construed accordingly. The definition of deemed tenant under sec. 4 is in the widest term as covering any person lawfully cultivating any land belonging to other person if such land is not cultivated by the owner and if such tenant is not within one of the three categories in clause (a) (b) and (c) of being a member of owners family a servant on wages payable in cash or kind but not in crop share or hired labourer or a mortgagee in possession. ( 8 ) IN Dahya Lala v. Rasul 65 Bom. L. R. 328 at page 330 their Lordships had pointed out what was the width of the definition of term deemed tenant whose object was to afford protection to all persons other than those mentioned in clauses (a) (b) and (c) of sec. 4 who lawfully cultivated land belonging to other persons whether or not their authority was derived directly from the owner of the land. That is why even the mortgagees tenant was held to be a deemed tenant and their Lordships held that if possession of such deemed tenant in respect of the disputed land was obtained even by execution of the award of the Debt Adjustment Court without the order of the Mamlatdar such possession was obtained in violation of the express prohibition. Sec. 29 (2) prohibited landlord from obtaining possession otherwise than under the orders of the Mamlatdar. The tenant was therefore held to be unlawfully dispossessed. Therefore according to the definition of the deemed tenant the object of the Act is to protect such statutory tenants who would have the statute of irremovability conferred on them by the protective umbrella created by this Act. Even sec. The tenant was therefore held to be unlawfully dispossessed. Therefore according to the definition of the deemed tenant the object of the Act is to protect such statutory tenants who would have the statute of irremovability conferred on them by the protective umbrella created by this Act. Even sec. 31 created a fiction for the purposes of the Act that a person shall be recognised to be protected tenant if he was deemed to be protected tenant under secs. 3 3 and 4 of the 1939-Act and in case of such protected tenant sec. 14 provides that notwithstanding any law agreement usage or the decree or order of a Court the tenancy of such tenant on any land shall not be terminated except as provided therein. Sec. 5 as it stood even in 1952 had conferred such protection by statutory extension of the lease period and had conferred status of irremovability on even ordinary tenant. Sec. 29 (2) in terms is a clear legislative mandate that no landlord shall obtain possession of any land held by a tenant except under order of the Mamlatdar. Therefore the legislative section is apparent in the language of sec. 29 (2) which puts such an embargo not on mere institution of such action but on obtaining possession except under order of the Mamlatdar. Therefore even in a pending suit the Civil Court would not be able to pass any decree ignoring this mandate of the legislature which clearly settled the point of time at which the protective umbrella comes into operation. Even secs. 70 and 85 provide for dispute being resolved by the revenue authorities as to the relevant questions mentioned in sec. 70. In any event so far as this eviction suit was concerned in view of the protective provisions ant in particular in view of sec. 29 the Civil Court would never have any jurisdiction to pass decree for possession of the land. The amendment in law which had already come into operation from January 12 1953 was to be given effect to by the Court before passing decree of eviction as categorically laid down by their Lordships in Mohanlals case. Therefore the provisions to which we have referred to clearly disclose a different intention to affect pending litigation. The amendment in law which had already come into operation from January 12 1953 was to be given effect to by the Court before passing decree of eviction as categorically laid down by their Lordships in Mohanlals case. Therefore the provisions to which we have referred to clearly disclose a different intention to affect pending litigation. Unless that view in taken of such necessary Intendment the mischief which was sought to be suppressed by the legislature would result by eviction of these tenants. These tenants were deprived of the statutory protection of 1948-Act because the lands were sought to be exempted under sec. 88 (1) (c) when the 1948-Act came into operation on December 28 1948 But who the legislature decided upon giving them protection of the Act unless the Court took notice or the change in law the salutary object of this benevolent legislation would be frustrated. Therefore even if this question was any longer res integra after Mohanlal Kotharis case we must hold that a different intention was necessarily implied so as to affect the pending litigation. ( 9 ) MR. Oza however vehemently argued that the material fact which must be noticed is that as per Kamles decision 1939-rights which were acquired by the tenants were destroyed and during that period when there was exemption the landlord had terminated tenancy and even filed suit for eviction. That would hardly make any difference for determining whether pending litigation was sought to be affected by the statutory amendment in 1952 which necessarily intended to protect those tenants who were once deprived of the statutory protection by the exemption created by the legislature. The argument of Mr. Oza that there was something like a vested right has already been answered in Mohanlal Kotharis case. Their Lordships in terms held that there was no question of any vested right in such case unless the landlord had obtained decree for possession and had obtained possession by executing decree. Only then the right of the landlord would have ripened. There was no question of any vested right when the amended statute was sought to be applied by the Court at the appellate state before passing a decree of eviction. The Court was bound to take notice of change in law in such circumstances and must refuse to pass a decree if such decree contravened the plain mandate of sec. 29 (2 ). Mr. The Court was bound to take notice of change in law in such circumstances and must refuse to pass a decree if such decree contravened the plain mandate of sec. 29 (2 ). Mr. Oza in this connection vehemently relied upon the decision of the Division Bench in Dhondi Tukarams case 55 Bom. L. R. 663 where the question of sec. 89 (2) (b) (ii) in its application to pending proceedings vas considered. At page 670 the Division Bench had in terms observed that they were considering the only question whether the Civil Courts jurisdiction was ousted in a pending proceeding on the ground that the plea of tenancy was taken under sec. 70 (b) in a pending litigation and they were not considering at that stage the question of sec. 29. Mr. Oza next relied upon the decision in Rajasaheb v. Harishchandra 56 Bom. L. R. 636 by Shah J. where at page 641 it was in terms observed that a decree having been passed for possession the tenancy relation had ceased to exist and the decree - holder was not a landlord within the meaning of sec. 29 (2 ). The decree was not held to be affected by sec. 29 on the application of the Act. The learned Single Judge had distinguished the decision in Dhondi Tukaram v. Dadu Piraji 55 Bom. L. R. 663 by the observation that the effect of sec. 29 was not considered would not suggest that the Court was prepared to take the view that the Civil Court had no jurisdiction to enforce compliance with decree passed in the exercise of its jurisdiction. Mr. Oza could not draw any inspiration therefore from the observation at page 641 that there was nothing in sec. 29 which required a decree-holder who had obtained decree for possession in his favour from the Civil Court to apply to the Mamlatdar to execute the decree. We would consider this question immediately after referring to the decision of Shelat J. (as he then was) in Motiji v. Anand Prasad 2 G. L. R. 444 where it has been in terms held that the Amendment was not retrospective so as to affect pending litigation. This decision is directly on sec. We would consider this question immediately after referring to the decision of Shelat J. (as he then was) in Motiji v. Anand Prasad 2 G. L. R. 444 where it has been in terms held that the Amendment was not retrospective so as to affect pending litigation. This decision is directly on sec. 29 and the learned Judge had in terms held that the pending suit was governed by the law as it was in force at the date of the institution of the suit. With great respect the learned Judge had wrongly distinguished the Full Bench decision in Maganbhais case 66 Bom. L. R. 1383 which is approved by the Supreme Court that there was an express provision to give retrospective effect in the proviso to sec. 43 (1) (c) for it clearly lays down that if there was such necessary intendment the retrospective effect has to be given. Both Shah J. and Shelat J. had not considered the relevant question which had to be posed in such circumstances as per the settled legal position that such an amendment is a repealing provision which necessarily attracts sec. 7 of the Bombay General Clauses Act and therefore if a different intention appears from the provisions of the amended law even a pending litigation would have to be decided in the light of the amended law. Besides the Full Bench had settled the question after following the ratio laid down by the Court of appeal that looking to the character of such rent restriction statute if the legislature has laid down a rule of decision in sec. 29 that no possession shall be obtained except under order of the Mamlatdar even in a pending suit the Civil Court would not be able to pass or enforce an eviction decree. In such cases under the very language under by the legislature to suppress mischief which was intended to be remedied the point of time which was envisaged by the legislature at which protection was extended was the date when possession was to be obtained by the order of the Mamlatdar. Therefore in such a statute retrospective effect was plainly intended and the Full Bench decision was wrongly sought to be distinguished. Therefore in such a statute retrospective effect was plainly intended and the Full Bench decision was wrongly sought to be distinguished. Therefore both decisions of Shah J. and Shelat J. could not be taken as good authority in view of the aforesaid settled legal position especially as in Mohanlal Kotharis case even their Lord. ships have in identical situation held that the court even at the stage of appeal would be bound to take notice of the change in law in such cases and would give protection to the tenant as intended by the Act. ( 10 ) FINALLY as Mr. Vakil sought to involve even the amended sec. 4 which corresponds to of sec. 31 Mr. Oza has raised a preliminary contention that this point having not been raised before the learned Single Judge it could not be permitted in the Letters Patent Appeal. We have already held that after the 1952-Amendment came into force on January 12 1953 all the provisions in secs. 1 to 87 became applicable to those lands of these tenants notwithstanding that suit was already instituted by the landlord. Therefore even the fiction of protected tenancy created by sec. 31 or even by the present amendment in sec. 4a after the 1956-Act would be available to the tenant. The contention of Mr. Oza was sought to be based on the decision of the Division Bench consisting of Bhagwati J. (as he then was) and myself in Kadi Municipality v. New Chhotalal Mills I. L. R. 1965 Guj. 145 where it was pointed out that ordinarily a new point could not be permitted in a Letters Patent Appeal. That is not a rule of universal application when a Print is one which goes to the root of the matter or is obvious point of jurisdiction which is sought to be argued on the facts on the record or when the same point is sought to be illuminated in its further nuance by resorting to additional arguments. In Habib Nasarkhanji v. State 11 G. L. R. 307 at page 321 the Division Bench consisting of Vakil J. and my learned Brother had in terms held that such 2 point going to the root can be allowed even in Letters Patent Appeal. In the present case sec. 4a is sought to be relied upon by Mr. In Habib Nasarkhanji v. State 11 G. L. R. 307 at page 321 the Division Bench consisting of Vakil J. and my learned Brother had in terms held that such 2 point going to the root can be allowed even in Letters Patent Appeal. In the present case sec. 4a is sought to be relied upon by Mr. Vakil as a further facet of his argument in support of his main point that as the protected tenant his protection had come into full force from January 12 1953 and the tenancy of such protected tenant could not be terminated except as provided by sec. 14 and no possession could be taken except as provided in sec. 29. Therefore both under sec. 31 and sec. 4a when the legislature created this fiction that such a person for the purposes of this Act was to be recognised to be a protected tenant if he was deemed to be a protected tenant under secs. 3 (a) and 4 of the 1939 Act full effect must be given to this legal fiction even in a pending suit. Mr. Oza argued that the rights acquired under secs. 3 3 and 4 by these defendants had already been destroyed by the initial exemption granted to these lands under sec. 88 (1) (c ). But once this exemption was cancelled by the legislature if this was not a vested right but something acquired under the exemption granted by the legislature as soon as the legislature deleted this exemption this legal fiction came into force and the court was bound to give effect to this legal fiction. Therefore the scheme of the Amended Act clearly reveals a contrary intention and unless the pending suit was affected legal effect can never be given to the fiction created by the legislature during the pendency of the suit by applying sec. 31 and sec. 4a and the tenant would be deprived of possession in plain violation of the mandate of sec. 29 In that view of the matter Mr. Vakil must succeed on this short ground that the Civil Court had in this pending suit no jurisdiction left after January 12 1953 to pass any eviction decree as the tenant was entitled to protection under the Act which was applied from that date to these lands in question. 29 In that view of the matter Mr. Vakil must succeed on this short ground that the Civil Court had in this pending suit no jurisdiction left after January 12 1953 to pass any eviction decree as the tenant was entitled to protection under the Act which was applied from that date to these lands in question. Therefore the plaintiffs suit as in Mohanlal Kotharis case must be dismissed on this short ground. Mr. Oza vehemently argued that this Court should go into the points on merits so that no remand would be necessary if the matter is ultimately taken in appeal to the Supreme Court. As we have taken the view as per the settled legal position as pointed out by us that the Civil Court would have no jurisdiction in this matter it would not be proper for us to go into the merits and therefore on the three points on merits we express no opinion. ( 11 ) IN the result the Letters Patent Appeal must be allowed by reversing the decree passed by the learned Single Judge and by restoring the decree dismissing the plaintiffs suit passed by the learned Assistant Judge. There shall be no order as to costs all throughout in the circumstances of the case. ( 12 ) MR. Oza at the end made a request for a certificate under Article 133 (1 ). As pointed out by us in our decision after Mohanlal Kotharis decision and other decisions which we have referred to we cannot consider that the ease involves a substantial question of law of general importance even though we have held that the two decisions of the learned single Judge Shah J. and Shelat J. which we have pointed out are not good law. In any event in view of Mohanlal Kotharis decision we can never give opinion that the present question which we have decided needs to be decided by the Supreme Court. Therefore both. he relevant conditions prescribed under Article 133 (1) are not fulfilled in the present case and therefore the certificate is refused. Appeal allowed: leave to appeal not granted. .