Every order under Section 4 of the Bombay Tenancy & Agricultural Lands Act, 1948 is appealable, including orders in regard to claim to tenancy passed under section 70 (b) of the Act.

DESHPANDE J.-The petitioner applied to the Tahasildar for a declaration of his being the tenant of certain land. The application was made under section 70 (b) of the Bombay Tenancy & Agricultural Lands Act, (hereinafter referred to as "the Act"). Tenancy is claimed on the basis of contract with opponents' father and rent also is claimed to have been paid to him during his life time and thereafter to the opponents. Opponents denied all this. On evidence, the Aval Karkun accepted his claim. In an appeal by the opponent, the petitioner raised a preliminary point that section 74 (1) did not provide for any appeal against such declaration under section 70 (b) of the Act. The Collector overruled this, saying that the petitioner is found to be a deemed tenant under section 4 of the Act and hence appeal under section 74 (1) (a) was competent. The Revenue Tribunal declined to interfere in revision.

2. In the ease of Shantabai Ramchandra Ghatge v. Pandurang Ramchondra Mandlik,1 Malvankar J, held that no appeal against the order of Tahsildar passed under section 70 (b) would lie unless it is in regard to the claim of deemed tenancy.

3. Mr. Limaye, the learned advocate appearing for the Petitioner, relied on this case and contends that the petitioner having claimed contractual tenancy and succeeded therein, appeal to the Collector was not competent. But in Special Civil Application No. 1908 of 1970, decided on 3rd April 1972, Vaidya, J., on the other hand held that every order under section 72 (b), is appealable to the immediate Superior Revenue Officer, under section 247 of the Land Revenue Code which according to him, is applicable to tenancy appeals by virtue of section 74 (2) of the Act. Mr. Parulekar, learned advocate for respondents relied on this. He also contended that a claim of even being a contractual tenant cannot be excluded from section 4 of the Act, order under which is made expressly appealable under section 74 (1) (a) of the Act, even though section (4) deals with "who can claim to be a deemed tenant."

4. Sawant, J., referred the case to the Division Bench, in view of this conflict of opinion proceeding presumably but rightly on the basis that petitioner claimed contractual tenancy, and impugned declaration is based thereon.

5. It is now well settled that right of appeal is entirely a creature of the statute. Assumption of such right by reference to section 247 of the Land Revenue Code appears to us to be open to doubt. Section 74 (1) enumerates the various sections, orders passed under which are made expressly appealable. Section 74 (2) makes Chapter XIII of the land Revenue Code application to appeal “this case”. The words “to the appeals to the Collector under this Act” signify that provision for the appeal has to be traced in the tenancy Act itself and provisions of Chapter XIII are to be applicable not for tracing the right of appeal but for some procedural purpose. The words obviously seem to have reference to the appeals indicated in section 74 (1) of the Act which are all contemplated to be to the Collector.

6. Secondly, such application of the Code is subject to “save as otherwise provided” in this Act. An appeal under section 247 of the Code against orders under other enactments also is made subject to any contrary provision. Section 74 (1) itself is such a contrary provision. By specifying appealable orders, section 74 (1) impliedly prohibits other orders being Appealable. Thirdly, Deputy Collector would be the immediate superior revenue officer to the Tahsildar and appeal against the order of the latter would lie to the former under section 247 of the Code. But section 74 (2) refers to the “appeal to the collector”, which again is indication of contrary intention. That, Collector’s such powers are exercisable by Deputy Collector is wholly irrelevant for this construction. With respect, it is difficult to draw an inference of the right of appeal by reference to section 247 of the Land Revenue Code.

7. Th