( 1 ) IN this Second Appeal the main question of law that arises is whether an issue regarding tenancy arises in the present suit and is required to be referred to the tenancy court under the Bombay Tenancy and Agricultural Lands Act.

( 2 ) THE appellant is the original plaintiff who had liked the suit for redemption of the mortgage property being agricultural land. The suit was centested on the ground that there was an absolute sale and not in mortgage. However the plea of the defendants was negatived and it was held that the suit transaction was a mortgage and the preliminary decree for redemption was passed. The First Appeal to the District Court and the Second Appeal to the High Court failed. thereafter proceedings for final decree were taken before the trial court. At that stage the respondents-defendants raised a new contention based on sec. 25a of the Bombay Tenancy and Agricultural Lands Act 1948 which gives protection to a tenant who becomes usufructuary mortgagee of the same land and it provides that if any Land is mortgaged by a landlord by way of a usufructuary mortgage to a tenant cultivating such-land the tenancy of such land shall be in abeyance during the period the mortgage subsists and after the expiry of the said period it shall by lawful to the tenant to continue to hold the land on the terms and conditions on which he held it before the mortgage was created. The defendants therefore raised a contention that there were tenants cultivating the suit land prior to the creation of the usufructuary mortgage and therefore on redemption of the usufructuary mortgage the tenancy is revived and no decrees for actual possession can be passed in the redemption suit.

( 3 ) THE learned trial Judge held that -the defendants failed to prima facie prove that they were tenants of the suit land prior to the mortgage transaction and therefore rejected the contention and passed the final decree. In the appeal of the defendants the learned Assistant Judge held that the issue regarding tenancy was required to be referred to the tenancy court. Therefore the final decree of the trial court was reversed by remanding the matter to the trial court with the following two issues the returned to the tenancy Court1 Whether the defendants were the tenants of the suit land prior to the mortgage transaction dt. 24/05/1951; 2 Whether their tenancy rights revived under sec. 25a of the Tenancy Act as alleged by the defendants. Being aggrieved by this the original plaintiff has filed this Second Appeal.

( 4 ) THE learned counsel for the appellant has submitted that there is no prima facie case in the contention of the defendants and the learned trial Judge had rightly held that there is no evidence even of a prima facie case regarding prior tenancy. It is also contended that sec. 25a is not attracted in the present case at all because there is no usufructuary mortgage as defined in sec. 58 (d) of T. P. Act and the mortgage in this case has been held to be a mortgage by conditional sale as defined in sec. 58 (c) of T. P. Act. For this purpose reliance is placed on the judgment of this court in Second Appeal No. 324/72 against preliminary decree between the same parties arising in this very suit. In that Second Appeal against the preliminary decree the question was whether the suit transaction was an absolute sale or a mortgage by way of conditional sale and the court held that this was not a transaction of absolute sale but it was a transaction of mortgage by conditional sale. At that stage the court was only concerned with the question whether it was a sale or a mortgage and there was no question as to the nature of the mortgage. Therefore it cannot be said that the question of nature of the mortgage has been decided between the partics.

( 5 ) THE learned counsel for the appellant has also submitted that once it has been held that the suit transaction is in the nature of a mortgage by conditional sale it is not open to the parties