S. G. DODDAKALE GOWDA, J.

( 1 ) THE petitioner, in this writ petition, has challenged the order dated 25 6-1976 made in No. LRM 2/74-75 and 956/74-75 by the land Tribunal, Chintamani, rejecting his claim for registration of occupancy right.

( 2 ) IN WA No. 458 of 1976 the order, dated 27-8-1976 by which writ petition was rejected, has been set aside and remitted to consider the question whether the petitioner could be a 'deemed tenant' under S. 4 of the Karnataka Land Revenue act, 1964.

( 3 ) THE facts of the case may be briefly stated thus :-- the petitioner was the owner pf S. Nos. 27/2, 133/3 and 184/3 situate at Anoor village, Chintamani Taluk. By a registered deed dated 13 1 1969, he conveyed Ms right, title and interest in favour of the second respondent for a consideration of rs. 1,000. The second respondent owner in OS No. 301 of 1974 on the file of the munsiff, Chintamani, sought for temporary injunction restraining the petitioner from interfering with his peaceful possession and enjoyment of the property. The Civil court has appointed the second respondent and two others who have purchased two other survey numbers for him as receivers.

( 4 ) THE Tribunal after holding an enquiry has rejected the application filed in form No. 7 claiming occupancy right as a tenant in occupation as oh 1-3-1974 in respect of the property which he conveyed under the deed referred to above. The petitioner has examined four witnesses. So also the respondent has examined four witnesses. One Pyaru Sab, who according to the parties, was present at the time of execution of the ?ale deed was summoned and examined by the Tribunal for the purpose of ascertaining the nature of the transaction.

( 5 ) SRI K. Subba Rao, learned counsel for the petitioner, contended that the sale deed dated 31 1-1969 was only an ostensible sale for mortgage and never intended to convey right, title and interest in the property. He submitted that the properties in question were offered as security for a sum of Rs. 1,000 borrowed from the respondent to meet certain exigencies. The deed was executed in that form on account of trust. Despite the. execution of the sale deed dated 3i 1-1969 he continued to be in possession of the property in dispute by paying half the produce. It was submitted that taking into consideration the nature of the property and consideration paid under the deed when compared with the mar. ket value of the property, it must be held respondent-2 had not derived any absolute interest in the property. The relevant portion of the averments made in para 19 of the petition reads thus : "since the sale deed was purely a nominal one and since only a nominal amount was passed under the said deed, as against valuable lands, and since the second respondent bad promised the petitioner to reconvey the lands, the second respondent was silent". Thus it is clear, the plea of the petitioner that the sale deed dated 31-1 1969 is either nominal or a mortgage. If it is a nominal sale deed, the petitioner continues to be a real owner and he cannot be a tenant unto himself. The plea advanced is more in consonance with the claim to treat the deed as a mortgage and not as a sale, in which case, it is only a Civil Court that can adjudicate the nature of the deed and not the Tribunal. The case put forward both before the Tribunal and this Court is on the horns of a dilemma. The petitioner is neither willing to admit the transfer in favour of respondent 2, nor willing to stake the claim as a tenant under him. It is necessary to extract the relevant portion of the evidence of the petitioner which reads thus :- x x x x the Tribunal on a consideration of the material placed before it has rightly come to the conclusion that the petitioner is not a tenant.

( 6 ) AS per the remand order what is required to be considered is whether he could be a deemed tenant within the meaning of S. 4 of the Act. Sri K. Subba Rao submits that the decision of the Tribunal is erroneous because it has

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