Judgement

SHAH, J. : Survey No. 126 admeasuring 11 acres and 20 gunthas of Mouje Telod District Broach belonged to the ancestors of the appellants. By deed dated July 24, 1891, the owners mortgaged the land to one Umiyashankar with possession. Shortly after the mortgage, the mortgagee inducted one Mohammed Abdul Rahim as a tenant on the land.

2. The appellants as owners of the equity of redemption applied to the court constituted under the Bombay Agricultural Debtor s Relief Act, 28 of 1947, for adjustment of the debt due under the deed dated July 24, 1891 and for redemption of the land mortgaged. On February 19, 1954, an award was made in this application by compromise between the parties declaring that Rs. 3,000 were due to the mortgagee under the deed dated July 24, 1891, that "the land in dispute was in the possession of Mohammed Abdul Rahim as tenant of the mortgagee, and that the mortgagor had the right to take possession of the land from the said tenant." In execution of the award, Mohammed Abdul Rahim - who will hereinafter be referred to as the respondent - was evicted. On June 7, 1954, the respondent applied to the Mahalkari of Hansot for an order under S. 29 of the Bombay Tenancy and Agricultural Lands Act 1948 restoring possession of the land. The Mahalkari rejected the application and that order was confirmed in appeal by the District Deputy Collector, and by the Bombay Revenue Tribunal in revision from the order of the Deputy Collector. The High Court of Judicature at Bombay was then moved by the respondent under Art. 227 of the Constitution. The High Court following its earlier judgment in Jaswantrai Tricumlal v. Bai Jiwi, ILR (1957) Bom 342 set aside the order passed by the Tribunal and ordered that possession of the land be restored to the respondent and declared that the respondent was entitled to continue in occupation as tenant on the same terms on which he was a tenant of the mortgagee. The mortgagors have applied to this Court against that order of the High Court with special leave.

3. The Bombay Tenancy Act of 1939 was enacted to protect tenants of agricultural lands in the Province of Bombay and for certain other purposes. That Act was repealed by S. 89 of the Bombay Tenancy and Agricultural Lands Act, 1948, which came into operation on December 28, 1948. By the repealing clause, certain provisions of the Act of 1939 with modifications were continued. By the Act of 1948, under S. 2(18) as it stood at the material time, a tenant was defined as "an agriculturist who holds land on lease and includes a person who is deemed to be tenant under the provisions of this Act." Section 14 of the Act provides that notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be determined unless the conditions specified in that section are fulfilled. It is unnecessary to set out the conditions because it is common ground that the tenancy of the respondent was not sought to be determined on any of the grounds in S. 14 : it was in execution of the award made by the Debt Relief Court that the respondent was dispossessed. Section 29, by sub-s. (2) provides that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application in the prescribed form ....... . Section 4 of the Act in so far as it is material provides: "A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant, if such land is not cultivated personally by the owner and if such person is not -(a) a member of the owner s family, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner s family, or (c) a mortgagee in possession . Section 4 seeks to confer the status of a tenant upon a person lawfully cultivating land belonging