A. D. DESAI, M. C. TRIVEDI, J. ( 1 ) BRIEFLY stated the facts leading to this litigation are that the agricultural lands in dispute are situated in village Husepur taluka Padra district Baroda. Ratilal Mithabhai is the owner of the suit lands. As he was a minor his estate was taken into management by the Court of Wards in the year 1947. At tie time when the suit property was under the management of the Court of Wards Raojibhai Lallubhai the son of plaintiff respondent No. 1 took the lands on rent for cultivation since before the year 1948-49 and an entry to that effect had been made in the record of rights. Raojibhai continued to be the tenant of the lands till his death in the year 1968. The rent of the lands was fixed under the Bombay Tenancy and Agricultural Lands Act 1948 Raojibhai Lallubhai died on 30th August 1968 and on his death the suit lands came into possession of the plaintiff respondent No. 1 and she paid the rent thereof. The Bombay Tenancy and Agricultural Lands Act 1948 was applied to the Baroda State with certain modifications on July 30 1949 The said Act was thus not in force in the agricultural years 1947 and 1948 49. The plaintiff respondent No. 1 claims to be a protected tenant under sec. 3a of the Bombay Tenancy Act 1939 which was applied tn the Baroda State in view of the extension of the Bombay Tenancy and Agricultural Lands Act 1948 to the area. The plaintiff respondent No. 1s son Raojibhai became the protected tenant as he was in possession on August 1 1950 and under sec. 4a of the Bombay Tenancy and Agricultural Lands Act 1948 he became a protected tenant and acquired rights as such a tenant under the said Act. On his death the plaintiff inherited the said status and rights and acquired the status of irremovability from the lands in her possession as a protected tenant. In spite of the statutory right and status which the plaintiff acquired under the Act appellant No. 2 that is the Mamlatdar Padra the manager of the Court of Wards gave a notice on January 14 1969 to the plaintiff respondent No. 1 under sec. 44 of the Bombay Land Revenue Code terminating the tenancy and demanding possession of the suit lands. 44 of the Bombay Land Revenue Code terminating the tenancy and demanding possession of the suit lands. The plaintiff came to know that the defendants appellants that is the Collector of Court of Wards and the Mamlatdar the manager of the Court of Wards were to take possession of the lands from her on April 18 1969 and therefore she filed special civil suit No. 50 of 1969 in the Court of the Civil Judge (Senior Division) Baroda for a declaration that she was a protected tenant as an heir of deceased Raojibhai and for a permanent injunction restraining the appellants from obstructing and/or interfering with her possession of the lands. Many contentions were raised by the appellants defendants in the written statement but the suit was mainly resisted by the defendants appellants on the ground that they had a right to take possession of the lands under the law and the plaintiff respondent No 1 could not claim the status of irremovability from the lands in view of sec. 88 of the Act The question that arose before the trial court was whether the plaintiff respondent No. 1 was entitled to protection under the Bombay Tenancy and Agricultural Lands Act 1948 or not. The trial court held that the plaintiff was a tenant and as she was entitled to rights of a protected tenant on the day when the Bombay Tenancy and Agricultural Lands Act came into force the rights so acquired were not destroyed when in the year 1966 when the legislature by Act No. XIII of 1956 exempted the lands under the management of Court of Wards from the operation of secs. 1 to 87 of the Bombay Tenancy and Agricultural Lands Act. The trial court in deciding as above followed the decision of the Supreme Court in Sakharam Narayan Sanas v. Manikchand Motichand Shah 64 B. L R. 403. The trial court therefore decreed the suit of the plaintiff holding that it had jurisdiction to entertain the suit It is this decree which is challenged in this appeal. ( 2 ) THE question is what is the effect of sec. 88 as amended by Act XIII of 1956 on the protected tenancy rights of plaintiff respondent No. 1 which she acquired under the Bombay Tenancy and Agricultural Lands Act 1948 on its application to the lands in dispute. ( 2 ) THE question is what is the effect of sec. 88 as amended by Act XIII of 1956 on the protected tenancy rights of plaintiff respondent No. 1 which she acquired under the Bombay Tenancy and Agricultural Lands Act 1948 on its application to the lands in dispute. The contention of the appellants and respondent No. 3 is that the said statutory rights were abolished or came to an end when sec. 88 as amended in the year 1956 came into operation. The contention of the plaintiff respondent No. 1 is that her protected tenancy rights remained protected even after operation of sec. 88 as amended and this was also so because of provisions of sec. 89 (2) of the Bombay Tenancy and Agricultural Lands Act 1948 To put in short the contentions centre round the point whether time provisions of sec. 88 (1) (c) of the Bombay Tenancy and Agricultural Lands Act 1948 on its application destroyed or not the rights of the plaintiff respondent No. 1 as a protected tenant. ( 3 ) THERE is no dispute that the Bombay Tenancy and Agricultural Lands Act 1948 when it was originally enacted did not exempt from the provisions of secs. 1 to 87 thereof the lands under the management of court of Wards and this position continued till the enactment of Act No. XIII of 1958 by which the original Bombay Tenancy Act 1948 was amended. By Act No. XIII of 1956 sec. 88 was enacted as under:88 Exemption to Government lands and certain other lands Nothing in the foregoing provisions of this Act shall apply (A) to lands belonging to or held on lease from the Government; (B) to any area which the State Government may from time to time by notification in the Official Gazette specify as being reserved for non-agricultural or indus trial development: (C) to an estate or land taken under management by the State Government under Chapter IV or sec. 65 or under the management of the court of Wards or to the lands taken under management temporarily by the Civil Revenue or Criminal courts by themselves or through the receivers appointed by them till the decision of the title of the rightful holders. 65 or under the management of the court of Wards or to the lands taken under management temporarily by the Civil Revenue or Criminal courts by themselves or through the receivers appointed by them till the decision of the title of the rightful holders. PROVIDED that with effect from the date on which such estate or land is released from such management the foregoing provisions of this Act shall apply thereto and in the case of a tenancy (other than a permanent tenancy) subsisting on such date in respect of any land in such estate or such land the landlord shall be entitled to terminate such tenancy under sec. 31 within one year from such date and the tenant shall have the right to purchase the land under sec 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under sec. 31. The provisions of secs. 31 to 31d (both inclusive) and 32 to 32r (both inclusive) shall so far as may be applicable apply to such termination of tenancy and to the right of the tenant to purchase the land. SEC. 88 as enacted above was amended by Act. No XV of 1957 which came into force on April 3 1957 Sec. 15 of 1957 Act provided as under: 15 Amendment of sec. 88 of Bom. LXVII of 1948. In sec. 88 of the said Act (1) in clause (c) (A) the words and figures under management of the State Government under Chapter IV or sec. 65 or shall be deleted; and (B) after the words Court of Wards the words and figures or of a Government Officer appointed in his official capacity as a guardian under the Guardians and Wards Act 1890 (VIII of 1890) shall be inserted; (2) after clause (c) the following clause shall be inserted namely : (d) to an estate or land taken under management by the State Government under Chapter IV or sec. 65 except as provided in the said Chapter IV or sec. 65 as the case may be and in secs. 66 80 82 83 84 85 86 and 87. The effect of this amendment was that original clause (c) was divided into two parts viz. clauses (c) and (d) and both these clauses were introduced before the proviso to clause (c) of sec. 65 as the case may be and in secs. 66 80 82 83 84 85 86 and 87. The effect of this amendment was that original clause (c) was divided into two parts viz. clauses (c) and (d) and both these clauses were introduced before the proviso to clause (c) of sec. 88 as amended by Act No. XIII of 1956. The amended clause (c) of sec. 88 exempts lands from the operation of secs. 1 to 87 of the Act under the management of Court of or of a Government officer appointed in his official capacity as a guardian under the Guardians and Wards Act 1890 or to the lands taken under the management temporarily by Civil Revenue or Criminal courts by themselves or through receivers appointed by them till the decision of the title of the rightful holders. Amended clause (d) of sec. 88 provides for non-applicability of secs. 1 to 87 of the Act to lands or estate taken under the management by the State Government under Chapter for sec. 65 except as provided in the said Chapter IV or sec. 65 as the case may be and in secs. 66 80 82 84 85 86 and 87. The provisions of clauses (c) and (d) of sec. 88 are governed by the provisos which we find to have been enacted after clause (d ). The provisos govern both the clauses (c) and (d) of amended sec. 88. Having thus noticed the legislative history of the amendment of sec. 88 we shall again revert to the facts of the case. There is no dispute that sec. 34 of the Bombay Tenancy Act 1939 was made applicable to the Baroda area by provisions of the Bombay Tenancy and Agricultural Lands Act 1948 and the finding of the trial court that the plaintiff respondent No. 1 was a protected tenant is rightly not challenged before us. Sec. 4a of the Bombay Tenancy and Agricultural Lands Act 1948 was introduced by Act No. XIII of 1956 and it provided that for the purposes of this Act a person shall be recognized to be a protected tenant if such person has seen deemed to be a protected tenant under secs. 3 3 and 4 of the Bombay Tenancy Act 1938 referred to in schedule I to this Act. 3 3 and 4 of the Bombay Tenancy Act 1938 referred to in schedule I to this Act. There his again no dispute that till Act No. XIII of 1956 came into force the plaintiff respondent No. 1 got protection under the provisions of the Bombay Tenancy Act 1948 as it stood at that time. It may be noticed that even under sec. 25 of the Bombay Tenancy Act 1939 the lands held on lease from the Crown or a Co-operative Society or held on lease for the benefit of an industrial or commercial undertaking were alone exempted from provisions of the said Act. The provisions of sec. 88 came for consideration before the Supreme Court in various cases. Now the last decision on the point is to be found in S. N. Kamble v. The Sholapur Borough Municipality and Another A. I. R. 1966 S C. 538 the facts were that one Kamble had taken lands on rent from the local authority viz. Sholapur Borough Municipality on April 1 1946 for a period of three years. The lands taken on lease were situated within the municipal limits. The Bombay Tenancy Act 1939 was applied to this area and Kamble became a protected tenant under the said Act. The Bombay Tenancy Act 1939 was repealed by the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as Act of 1948 ). Sec. 31 of the Act of 1948 recognised protected tenancy of Kamble with the consequence that he also became a protected tenant under the Act of 1948. Sec. 88 of the Act of 1948 inter alia provided that sec. 1 to 87 of the Act shall not apply to lands taken on lease from the local authority. In view of the opening words of sec. 88 the provisions of the said section prevailed over the provisions of sec. 31 with result that Kamble would not be entitled to benefit of sec. 31 of the Act and could not claim to be a protected tenant under the said section. Having determined as aforesaid the court further considered the contention on behalf of Kamble that he was entitled to benefit of sec. 89 (2) of the Act of 1948. The court observed as under :now there is no doubt that sec. 31 of the Act and could not claim to be a protected tenant under the said section. Having determined as aforesaid the court further considered the contention on behalf of Kamble that he was entitled to benefit of sec. 89 (2) of the Act of 1948. The court observed as under :now there is no doubt that sec. 88 when it lays down inter alia that nothing in the foregoing provisions of the 1948 Act shall apply to lands held on lease from a local authority it is an express provision which takes out such lease from the pur of sec. 1 to 87 of the 1948 Act. One of the provisions 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 tenants is sec 31 and if that section is 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 treated as non-existent so far as lands held on lease 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 1948 Act came into force with respect to lands held on lease from a local authority. The intention from the express words of sec. It was not necessary that the express provision should in so many words say that there will be no protected tenants after the 1948 Act came into force with respect to lands held on lease from a local authority. The intention from the express words of 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 (1) (a) 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 in our opinion is the plain effect of the provision contained in sec. 31 sec 88 and sec. 89 (2) (b) of the 1948 Act. IT is no doubt true that the Supreme Court has interpreted the provisions of sec. 88 (1) (a) but in interpreting the provisions the court laid emphasis on the words nothing in the foregoing provisions shall apply and took the view that the said expression took out lands mentioned in Sec. 88 from the operation of secs. 1 to 87 of the Act of 1948. The net effect of the application of sec. 88 (1) (a) according to the Court was that the statutory Status which was conferred by the Act of 1939 was taken away by the provisions of sec. 88 of the Act of 1948. The legislature which conferred the status of irremovability on the tenants could remove the said status and did so by enacting sec. 88 (1) (a) of the Act. A Division Bench of this Court had again to consider the question of interpretation of sec. 88 in case of Vasanji Kevalbhai and Others v. Dahiben 15 G. L. R. 780 The facts in this case were that the then Acharya of Swaminarayan temple Vadtal was the owner of lands in dispute and he had leased them to Vasanji Keval and Ranchhod Morar. Ultimately Vasanji Keval alone became the tenant of the lands. The Acharya sold the lands to Dahiben subject to the tenancy rights of Vasanji Keval. The lands were situated within two miles of the Surat municipality and therefore stood exempted under the provisions of sec. Ultimately Vasanji Keval alone became the tenant of the lands. The Acharya sold the lands to Dahiben subject to the tenancy rights of Vasanji Keval. The lands were situated within two miles of the Surat municipality and therefore stood exempted under the provisions of sec. 88 (1) (c) as it then stood from the provisions of secs. 1 to 87. This exemption was removed and secs. 1 to 87 became applicable from January 12 1953 Before this amendment the purchaser had filed a suit for possession in the civil court against the tenant after terminating his tenancy. The trial court decreed the suit for possession. On appeal the learned Assistant Judge dismissed the suit. The second appeal was allowed by a single Judge of this Court and ultimately the case came before a Division Bench in a Letters Patent Appeal. The court considered the provisions of sec. 88 (1) (a) to (d) and sec. 89 (2) (b) and following the decision in Kambles case (supra) came to the conclusion that on a true construction of the said two provisions the effect was that the rights which had accrued to the tenant under the Act of 1939 were subsequently destroyed with retrospective effect and therefore the civil court had jurisdiction and the suit of the plaintiff was dismissed. In the present case we are concerned with the provisions of sec. 88 (1) (c) of the Act of 1948 which so far as relevant provides 88 Save as otherwise provided in sub-sec. (2) nothing in the foregoing provisions of this Act shall apply x x x x x (C) to an estate or land taken under the management of the Court of Wards of a Government officer appointed in his official capacity as a guardian under the Guardians and Wards Act 1890 or to the lands taken under management temporarily by the Civil Revenue or Criminal courts by themselves or criminal courts by them. selves or through the receivers appointed by them till the decision of the title of the rightful holders. There are two provisos to this section. The first proviso provides what is to happen to a tenancy subsisting on the day on which the management by Court of Wards is withdrawn and how the rights of the landlord or the tenant are to be regulated. There are two provisos to this section. The first proviso provides what is to happen to a tenancy subsisting on the day on which the management by Court of Wards is withdrawn and how the rights of the landlord or the tenant are to be regulated. The second proviso provides for rights of a permanent tenant on the withdrawal of management. It is clear that generally the estates managed by the court of Wards belong to minors and hence unless specific protection had been given to the lands under the management of the court of Wards they would be deemed to have been purchased by the tenant. The legislature was aware that when the lands are under the management of the court of Wards personal cultivation was not possible and the lands have to be cultivated through others and if the Tenancy Act applied the minor would be obviously adversely affected. The legislature therefore took a policy decision to grant exemption from operation of secs. 1 to 87 of the 1948 Act to lands under the management of the court of Wards. But the exemption which is granted is limited to the period during which the estate is under the management of the Court of Wards. As soon as the management is withdrawn the land or estate becomes subject to the provisions of the Act in respect of existing tenancies with modification that the landlords are given one years time from the date of withdrawal of management for terminating the tenancy under sec. 31 and for the purpose purchasing land the tenants are given one years time on the expiry of the period allowed to the landlords. Thus a policy decision was taken by the Government not to burden the lands of a minor when they are under the management of the Court of Wards by a tenancy which had been created by a manager of the estate to his inability to cultivate the lands personally. The plaintiff respondent No. 1 claims protection as a protected tenant under sec. 3a of the 1939 Act read with sec. 4a of the 1948 Act. It is thus obvious that the protected tenancy which the plaintiff respondent No. 1 claims was a result of the statutory provision. The legislature while amending sec. The plaintiff respondent No. 1 claims protection as a protected tenant under sec. 3a of the 1939 Act read with sec. 4a of the 1948 Act. It is thus obvious that the protected tenancy which the plaintiff respondent No. 1 claims was a result of the statutory provision. The legislature while amending sec. 88 as it stood earlier took into consideration cases of minors whose lands could be taken under management of the Court of Wards Act and for the reasons already given took a policy decision to exempt the lands to the extent aforesaid from the operation of the provisions of secs. 1 to 87 of the 1948 Act. The legislature which gave a status of irremovability to the plaintiff had a right to take it away and it did so by enacting sec. 88 (1) (c) as amended in the year 1956 as it considered protection of the minor as one of its essential duty. It must be noted that when the lands are under the management of Court of Wards its management is usually done by a Collector or his subordinates that is a Government officer who will be under control of the Government. The clear effect of sec. 88 is to take away the benefits which are granted to a tenant under the provisions of sec. 1 to 87 of the Act in cases of lands taken under the management of the Court of Wards and obviously if the protection is taken away ordinary law will apply with the result that a suit for possession could be filed by a landlord against a tenant in a civil court of course after terminating the tenancy in accordance with the provisions of law. The consequence is that in view of the facts of the present case the plaintiff respondent No. 1 cannot take the benefit of the provisions of secs. 1 to 87 of the 1948 Act and the Mamlatdar as the Manager of the suit lands under the management of the Court of Wards could terminate his tenancy by giving a valid notice. Therefore the plaintiff cannot file the suit for permanent injunction against the defendants appellants. ( 4 ) IT was argued by Mr. Thakar that in the present case before filing the suit the plaintiff respondent No. 1 had not given any notice as required by sec. Therefore the plaintiff cannot file the suit for permanent injunction against the defendants appellants. ( 4 ) IT was argued by Mr. Thakar that in the present case before filing the suit the plaintiff respondent No. 1 had not given any notice as required by sec. 30 of the Gujarat Court of Wards Act 1963 which provides that no suit relating to the person or property of any Govern ment ward shall be brought in any civil court until the expiration of two months after notice in writing stating the name and place of abode of the intending plaintiff the cause of action and the relief claimed has been delivered to or left at the office of the court of Wards; and the plaint shall contain a statement that such notice has been so delivered or left. Now this point was not argued in the trial court. In the written statement the only defence which was taken by the appellants was that the statutory notice was not given to the defendants. Because of this contention an issue was raised by the trial court as to whether the suit was bad and net maintainable in the absence of any statutory notice. At the time of argument on the said issue the only contention which was raised on behalf of the appellants was that notice under sec. 80 of the Civil Procedure Code was not given. It is thus clear that the defence of the defendants appellants was that the statutory notice under sec. 80 was essential and without it the suit was not maintainable. It was not the contention of the defendants appellants that no notice under sec. 30 of the Gujarat Court of Wards Act 1963 was given and therefore the suit was not maintainable. The argument about non-maintainability or the suit because of want of a notice under sec. 30 of the Gujarat Court of Wards Act 1963 is sought to be argued for the first time in this appeal and such a contention cannot be allowed to be raised for the first time because obviously the plaintiff will be deprived of her defence that such a notice had been given by her. 30 of the Gujarat Court of Wards Act 1963 is sought to be argued for the first time in this appeal and such a contention cannot be allowed to be raised for the first time because obviously the plaintiff will be deprived of her defence that such a notice had been given by her. ( 5 ) THE result is that the appeal is allowed and the decree passed by the trial court decreeing the plaintiffs suit is set aside and the suit of the plaintiff is dismissed with no order as to costs. .