C. V. RANE, J. ( 1 ) AT this stage it may be pointed out that the appellants have made anapplication for permission to amend the written statement in order to enable them to raise a contention that they being mortgagees in possession had become tenants under the provisions of the Bombay Tenancy and Agricultural Lands Act 1939 (for short the 1939) Act) and that the above position had remained unaffected even under the Bombay Tenancy and Agricultural Lands Act 1948 (For short the 1948 Act) and hence the civil court had no jurisdiction to decide the suit. No such contention was raised in either of the courts below. This shows that the appellants have given the above application for amendment at a very late stage. It is argued by the learned Advocate for the appellants that even if it is held that the appellants were in possession of the suit land as mortgagees they should be deemed to be tenants and hence the civil court has no jurisdiction to hear the suit. In support of the above arguments he has relied on the decision of this court in the case of SALAM RAJE V. MADHVSANG BANESANG AND OTHERS 4 G. L. R. 817. The relevant observations of this court in the above case are- it follows from the views categorically expressed by the full bench in this decision that if a tenant of a mortgagee became a deemed tenant under sec. 2a of the 1939 Act on the ground only that he came on the land lawfully though not because of the permission of or privity with the owner a mortgagee under an usufructuary mortgage must necessarily be in the identical position and must be said to be a deemed tenant on the same reasoning under sec. 2a of the 1939 Act. Sec. 2a of the Tenancy Act 1939 defines a tenant as a person lawfully cultivating land belonging to another person if such land is not cultivated personally by the owner and secondly if such person is not- (A) a member of the owners family or (B) a servant on wages or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owners family. The above section further provides than such a person becomes a deemed tenant provided that the owner has not made an application to the Mamlatdar within whose jurisdiction the land is situate for a declaration that the person is not a tenant within one year from the date of the coming into force of Bombay Act XXVI of 1946 that is to say within one year from the relevant date. It has been pointed out in the above case that it is also clear from the language used in sec 2a that there were only two classes of persons whom the Legislature excluded from the benefit of. sec. 2a viz.- (1) the members of the owners family and (2) his servants and hired labourers. Obviously a mortgagee in possession was not included in these two categories and was therefore not excluded from the benefit of sec. 2a though the Legislature must have been aware of the fact that there would be mortgagees cultivating lands belonging to mortgagors ( 2 ) THE Tenancy Act of 1939 was replaced by the Tenancy Act of 1948 According to sec. 4 (c) of the Tenancy Act 1948 however a mortgagee in possession was specifically excluded from the category of a tenant. This court held in the above case that section 4 was not retrospective and the rights acquired by the tenant under the old Act were expressly saved by sec. 89 (2) (b) (i) of the Tenancy Act 1948 Sec. 89 (2) (b) (i) of the above Act provides (2) But nothing in this Act or any repeal effected thereby (B) shall save as expressly provided in this Act affect or be deemed to affect (I) any right title interest obligation or liability already acquired accrued or incurred before the commencement of this Act or. It does not appear from the judgment in the case of Salam Raje (supra) that the fact that the words affect or be deemed to affect in clause (b) were qualified by the clause (save as expressly provided in this Act was considered while taking the view that sec. 4 was not retrospective and the rights acquired by the tenant under the old Act were expressly saved by sec. 89 (2) (b) of the Act. 4 was not retrospective and the rights acquired by the tenant under the old Act were expressly saved by sec. 89 (2) (b) of the Act. ( 3 ) THE above clause has been subsequently considered by the Supreme Court in the case of S. N. KAMBLE V. THE SHOLAPUR BOROUGH MUNICIPALITY AND ANOTHER A. I. R. 1966 SUPREME COURT 538 In the above case the appellant took on lease two survey numbers from the respondent Sholapur Borough Municipality on 1/04/1946 for 3 period of three years. The land is situate within the municipal limits. About 8/11/1946 the Bombay Tenancy Act No. 29 of 1939 (hereinafter referred to as the 1939-Act) was applied to this area and sec. 3-A of that Act provided that every tenant shall on the expiry of one year from the date of the coming into force of the Bombay Tenancy (Amendment Act (No. XXVI of 1946) be deemed to be a protected tenant unless his landlord has within the said period made an application to the Mamlatdar for a declaration that the tenant was not a protected one. The respondent did not file a suit within one year and therefore the appellant claimed to have become a protected tenant under the 1939 Act. The 1939-Act was repealed in 1948 by the Bombay Tenancy (Amendment) and Agricultural Lands Act No. LXVII of 1948 (hereinafter referred to as the 1948 Act. Sec. 31 of the 1948 Act provided that for the purposes of this Act a person shall be recognised to be a protected tenant if such person had been deemed to be a protected tenant under secs. 3 3 or 4 of the 1939-Act. Ordinarily therefore the appellant would have become a protected tenant under this section of the 1948- Act if he had become a protected tenant under the 1939-Act. But sec. 88 of the 1948 - Act inter alia provided that nothing in the foregoing provisions of the 1948-Act shall apply to lands held on lease from H local authority. Therefore if sec. 8x prevailed over sec. 31 the appellant would not be entitled to the benefit of sec. 31 and could not claim to be a protected tenant under this section. The appellant however relied on sec. 89 (2) of the 1948-Act which provided for the repeal of the 1939- Act except for secs. Therefore if sec. 8x prevailed over sec. 31 the appellant would not be entitled to the benefit of sec. 31 and could not claim to be a protected tenant under this section. The appellant however relied on sec. 89 (2) of the 1948-Act which provided for the repeal of the 1939- Act except for secs. 3 3 and 4 which continued as modified in schedule I of the 1948 That sub-section provided that nothing in the 1948-Act or any repeal effected thereby shall save as expressly provided in this Act affect or be deemed to affect any right title interest obligation or liability already acquired accrued or incurred before the commencement of the 1948-Act. ( 4 ) SEC. 31 of 1948-Act provided as follows :- for the purposes of this Act a person shall be recognised to be a protected tenant if such person had been deemed to be a protected tenant under sec. 3 3 or 4 of the 1939-Act. ( 5 ) IT has been pointed out in the above judgment that sec. 89 which repealed the 1939-Act did not repeal secs. 3 3 and 4 of that Act but those sections were continued as modified in Schedule I of 1948-Act for the purpose of sec. 31 of the 1948-Act. Sec. 88 of the 1948-Act inter alia provided that nothing in the foregoing provisions of the 1948-Act shall apply to lands held on lease from a local authority or a co-operative society. While negativing the contention of the appellant that according to the provisions of secs. 31 and 89 (2) of the Tenancy Act 1948 he should be deemed to be a protected tenant it has been observed:sec 88 lays down that nothing in the foregoing provisions of the 1948 Act shall apply inter alia to lands held on lease from a local authority like a municipality. As sec. 31 is one of the foregoing sections it will not apply to lands held on lease from a local authority. In other words so far as lands held on lease from a local authority are concerned there will be no provision in the 1948 Act for recognising a protected tenant even if a period was a protected tenant under the 1939 Act. It is only sec. In other words so far as lands held on lease from a local authority are concerned there will be no provision in the 1948 Act for recognising a protected tenant even if a period was a protected tenant under the 1939 Act. It is only sec. 31 which gave recognition to the status of a protected tenant under the if that provision is in effect omitted so far as lands held on lease from a local authority are concerned no such lessee can claim to be protected tenant. In effect therefore the legislature which had conferred by the 1939 Act the status of a protected tenant on certain persons was taking way that status by enacting sec. 88 in the 1948-Act so far as inter alia lessees from a local authority were concerned. The narrow question then is whether there is anything express in the 1948- Act which takes away the interest of a protected tenant acquired before its commencement. If there is any such express provision then sec. 89 (2) (b) would be of no help to the appellant. The contention of the respondent is that sec. 88 is an express provision and in the face of this express provision the interest acquired as a protected tenant under the 1939-Act cannot prevail. On the other hand it is urged on behalf of the appellant that sec. 88 does not in express terms lay down that the interest acquired by a protected tenant under the 1939-Act is being taken away and therefore it should not be treated as an express provision. Now there is no doubt that sec. 88 when it lays down inter az that nothing in the foregoing provisions of the 1939-Act shall apply to lands held on lease from a local authority it is an express provision which takes out such leases from the purview of secs. 1 to 87 of the 1948-Act. One of the revisions therefore which must be treated as non-existent where lands are given on lease by a local authority is in sec. 31. The only provision in the 1948-Act which recognised protected tenant is sec. 1 to 87 of the 1948-Act. One of the revisions therefore which must be treated as non-existent where lands are given on lease by a local authority is in sec. 31. The only provision in the 1948-Act which recognised protected tenant is sec. 31 and if that section to be treated as non-existent so far as lands held on lease from a local authority are concerned it follows that there can be no protected tenants of lands held on lease from a local authority under the 1948-Act it is true that sec. 88 does not in so many words say that the interest of a protected tenant acquired under the 1939 Act is being taken away so far as lands held on lease from a local authority are concerned; but the effect of the express provision contained in sec. 88 (1) (a) clearly is that sec. 31 must be teated as nonexistent so far as lands held on leas from a local authority are concerned and in effect therefore sec. 88 (1) (a) must be held to say that there will be no protection under the 1948-Act for protected tenants under the 1939 Act so far as lands held on lease from a local authority are concerned. It was not necessary that the express provision should in so many words say that there will be no protected tenants after the 1949-Act came into force with respect to lands held on lease from a local authority. The intention from the express words sec. 88 (1) is clearly the same and therefore there is no difficulty in holding that there is an express provision in the 1948-Act which lays down that there will be no protected tenant of lands held on lease from a local authority. In view of this express provision contained in sec. 88 the appellant cannot claim the benefit of sec 31; nor can it be said that his interest as protected tenant is saved by sec. 89 (2) (b ). This is in our opinion is the plain effect of the provisions contained in sec. 31 sec. 88 and sec. 89 (2) (b) of the 1948-Act. ( 6 ) AS observed above sec. 4 (c) of the 1948 Act specifically excludes mortgagee in possession from the category of a deemed tenant. 89 (2) (b ). This is in our opinion is the plain effect of the provisions contained in sec. 31 sec. 88 and sec. 89 (2) (b) of the 1948-Act. ( 6 ) AS observed above sec. 4 (c) of the 1948 Act specifically excludes mortgagee in possession from the category of a deemed tenant. The full bench of the High Court of Bombay has in the case of JASVANTRAI TRICUMLAL VYAS V. BAI JIWI 59 B. L. R. 168 observed that:-THE legislature in the Act of 1948 in clause (c) of sec. 4 has taken mortgagee in possession out of the category of statutory tenants. Therefore whatever lacuna there was in the old Act has now been made good. As regards the reasons why mortgagees in possession is excluded from the category of a deemed tenant the Supreme Court has observed in the case of DAHYA LALA V. RASUL MAHOMED ABDUL RAHIM 65 B. L. R. 328. A mortgagee in possession is excluded from the class of deemed tenants on grounds of public policy: to confer that status upon a mortgagee in possession would be to invest him with rights inconsistant with his fiduciary character. ( 7 ) THE object of sec. 4 (c) of the 1948 Act becomes abundantly clear from the above observations of the Supreme Court. Looking to the above object it appears that sec- 4 (c) falls within the clause save as expressly provided in this Act occurring in sec. 89 (2) (b) of the 1948 Act and in that case it would be difficult to say that the status of a deemed tenant alleged to have been acquired by the appellants under the Act of 1939 is saved by sec. 89 (2) (b) (i) of the 1948 Act. In other words in the face of the express provision of sec. 4 (c) of the 1948 Act which specifically excludes mortgagee in possession from the category of a deemed tenant there is no scope for saying that the appellants status as deemed tenants is saved by the provisions of sec. 89 (2) (b) (i) of the 1948 Act. An express provision to the contrary would hit any such right acquired before the commencement of the Act. 89 (2) (b) (i) of the 1948 Act. An express provision to the contrary would hit any such right acquired before the commencement of the Act. The above view is based on the decision of the Supreme Court in the case of S. N. Kamble (supra) in which it has been further observed-BUT the clause nothing in this Act shall affect or be deemed to affect is qualified by the words save as expressly provided in this Act. Therefor if there is an express provision in the 1948 Act that will prevail over any right title or interest etc. acquired before its commencement. Further the words save as expressly provided in this Act also qualify the words any repeal effected thereby and even in the case of repeal of the provisions of the 1939 Act if there is an express provision which affects any title right or interest acquired before the commencement of the 1948 Act that will also not be saved. It appears with great respect to the learned Judges who decided the case of Salam Raje (supra) that in that case full effect has not been given to the words save as expressly provided in this Act appearing in sec. 89 (2) (b) of the 1948 Act and in view of the decision of the Supremecourt in the case of S. N. Kamble (supra) the decision of this court in the case of Salam Raje cannot be considered to be a good law. It should further be remembered that mortgagee in possession was specifically excluded from the category of deemed tenant by sec. 4 (c) of the 1948 Act in order to remove the anomolies created by sec. 2a of the 1939 Act so far as mortgagee in possession is concerned and hence it is not likely that the legistature would have intended to protect any right of a mortgagee in possession to be included in the category of a deemed tenant under sec. 2a of the 1939 Act after sec. 4 (c) of the 1948 Act containing the provision to the contrary was enacted. In view of what is stated above it becomes evident that it is not open to the appellants to contend that they are tenants on the ground that they were in possession of the suit land as mortgagees. 2a of the 1939 Act after sec. 4 (c) of the 1948 Act containing the provision to the contrary was enacted. In view of what is stated above it becomes evident that it is not open to the appellants to contend that they are tenants on the ground that they were in possession of the suit land as mortgagees. Under these circumstances no useful purpose will be served by permitting the appellants to amend the written statement. Appeal dismissed. .