1. By the impugned order, Civil Judge, Senior Division, Akola, has referred issues Nos. 7 (b), (c), (d) and (e) to the tenancy Authorities for decision purporting to act under Section 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.
2. Few brief facts are necessary to be stated to understand the challenge to the legality, and validity of that order.
3. The suit is filed on 31-3-1956 much prior to the coming into force of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as 1958 Tenancy Act), claiming reliefs for specific performance of agreement of sale of agricultural land and/or possession of the said land as well as damages. Original defendant No. 2, who is now represented by defendants Nos. 1 to 4 as legal representatives, contended in that suit that there was a Kabulayat Patta of 1952-52 and, therefore, he became the protected lessee within the meaning of the Berar Regulation of Agricultural Leases Act, 1951. He sought reference and it appears that under Section 16-A of that Act, reference was made to Divisional Officer. That reference was returned unanswered because the Sub-Divisional Officer found that he had no jurisdiction to decide the question and it was Civil Court that was competent to decide the same question. That order was subjected to challenge before the Collector, then before the Maharashtra Revenue Tribunal and even thereafter the matter came to this Court and the order of Sub-Divisional Officer holding that Civil Court had jurisdiction was eventually upheld. Again, the suit opened., On 22-7-1971, as per Exh. 35, application was filed purporting it to be under Section 124 read with Section 125 of the 1958 Tenancy Act and praying that the issues regarding tenancy should now be referred under the provisions of the 1958 Tenancy Act to the tenancy authorities. That application has been allowed by the impugned order.
4. The law regarding the Civil Court's power to decide such questions, as far as this Court is concerned appears to be fairly well settled and does not admit of any debate, in that the legal proceedings pending before the Act came into force are treated as saved within the meaning of Section 132 (2) of the 1958 Tenancy Act. Admittedly the suit was pending on the date when that Act became the law. In Beharilal Surajmal v. Maharashtra Revenue Tribunal 1964 Mah LJ 63, the Division Bench of this Court held that the suit for possession filed before the 1958 Tenancy Act came into force, would be saved because of Section 132 (2) of that Act and the reference to revenue officer was not called for.
5. Mr. Kherdekar, however, emphasizes that this decision would not be laying down the correct position of law because by the amending Act No. 49 of 1959, Section 100 and Section 124 of the 1958 Tenancy Act have been amended and it has been clarified that even the question whether a person was at any time in the past a tenant is now excepted from the civil jurisdiction of the Court and has to be referred to the tenancy jurisdiction by virtue of the provisions of Section 125 of the 1958 Tenancy Act.
6. Undoubtedly, the argument, prima facie, appears to have some force past tense both in Section 100 as well as in Section 124 of the 1958 Tenancy Act. But these amendments of both these sections are to be read subject to the saving available in Section 132 and not by itself. If Section 132 (2) (ii) saved any legal proceeding in respect of the rights that had accrued before the commencement of the 1958 Tenancy Act and directed that such proceedings are to be continued as if the Act had not been passed, the argument of learned Counsel cannot be accepted. The effect of saving is that non of the provisions of the Act if the particular proceedings are within the ambit of saving would at all be attracted. Beharilal's decision 1964 Mah LJ 63 (supra) would still govern the matter. It need not be emphasized that normally the rule of construction in such matters is that the law that was applicable on the date of lis should be made applicable and the rights of the parties should be governed by the said law and the retroactivity of a subsequent statute should not be so stretched as to affect vested rights which inhere in the parties to the lis. This policy and principle becomes more applicable when there are express savings like the one available in Section 132 (2) (ii) of the 1958 Tenancy Act and there is no good reason to depart from that principle.
7. Thus, the suit being the suit filed prior to the 1958 Tenancy Act and the right that was claimed by the plaintiff in that suit being clearly saved, the impugned order could not have been made. The said order made below Exh. 35 is, therefore, set aside and the Civil Court is directed to proceed to determine the issues between the parties and decide the suit according to law.
8. Revision is thus allowed. However, there would be no orders as to costs.
9. Revision allowed.