( 1 ) THE respondents who claim to be the tenants in respect of S. No. 1194 admeasuring 5 acres 39 gunthas of village Anklav in Borsad Taluka of Kaira District filed the present suit under sec. 29 of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter re- ferred to as the Tenancy Act for the sake of brevity) against the petitioner (original landlord) for recovering possession of that land. The Mamlatdar who heard the application decided on merits and held that the land consisted of two parts one of which had been under mortgage with the tenants and another had not been under any such mortgage with them. In respect of the land under mortgage he held that prior to the mortgage the tenants had been cultivating the land lawfully and had therefore been its tenants. He therefore applied sec. 25a of the Tenancy Act and made an order for possession of the land under mortgage in favour of the tenants. He dismissed the rest of the claim made by the tenants because according to him they had not proved that they were or have been the tenants in respect of that part of the land.

( 2 ) BOTH the parties appealed against that order to the Collector. The Deputy Collector confirmed the findings recorded by the Mamlatdar and also the order for possession made by him. However he made an order under sec. 84 of the Tenancy Act directing that the landlord be summarily evicted from the land in respect of which order for possession had been made and that its possession be restores to the tenants. Against that order recorded by the Deputy Collector in two appeals filed by the landlord and the tenants both the parties went to the Revenue Tribunal. The Revenue Tribunal heard the two revision applications and gave a declaration that the tenants had proved that they had been the tenants in respect of the entire land under S. No. 1194 (5 acres-39 gunthas ). However the Revenue Tribunal did not make any order as to possession under sec. 29 because according to the Revenue Tribunal the tenants had become the deemed purchasers on 1st April 1957 and therefore no order for possession under sec. 29 could be made in their favour. The Reve- nue Tribunal also set aside the order of summary eviction made by the Deputy Collector because in its view while exercising appellate jurisdic- tion under sec. 74 of the Tenancy Act the power of summary eviction under sec. 84 cannot be exercised

( 3 ) IT is that common order which is challenged by the landlord in this petition. Mr. Shah who appears for the landlord has raised before me the following four contentions:1 Sec. 25a of the Tenancy Act is not applicable to a case of mortgage by conditional sale. 2 The transaction in question which took place between the parties was a transaction of conditional sale simpliciter and not a transaction of mortgage by conditional sale. 3 The Revenue Tribunal did not have jurisdiction to decide in an application under sec. 29 of the Tenancy Act whether the persons seeking possession of the land are tenants or not. 4 The Revenue Tribunal exceeded its jurisdiction under sec. 76 of the Tenancy Act in reappreciating the evidence.

( 4 ) SO far as the first and the fourth contentions raised by Mr. Shah are concerned they turn upon the applicability of sec. 25a to the facts of the case. I have seen the document or mortgage. It evidences the transaction of sale and incorporates a condition to reconvey the land in question to the tenants. It was executed on 24th February 1949. Since the condition to reconvey was incorporated in the document itself the plea that it was a transaction of mortgage by conditional sale could be taken. All the Courts below have construed that transaction as a transaction of mort- gage by conditional sale. None of the learned advocates appearing before me has disputed the nature of the transaction in so far as the applicability of sec. 25a of the Tenancy Act is concerned.

( 5 ) I now turn to sec. 25a. It was inserted in the Tenancy Act by Bombay Act