JUDGMENT :

Bhagwati Prasad, J.

The present Letters Patent Appeal is filed by the appellant challenging the judgment and order dated 14.2.2002 of this Court whereby the Special Civil Application filed by the respondent bank was allowed by the learned Single Judge. The learned Single Judge has noticed that the dispute of the parties is to the land bearing Survey No. 49/11 situated in village Bhatbet, Taluka Choryasi, Dist. Surat and the land bearing Survey No. 591 situated in village Pal, Taluka Choryasi, Dist. Surat. The appellant contended that by an agreement entered into between the appellant and the respondent bank on 13.6.1973, tenancy was created in favour of the appellant. The appellant cultivated the disputed land and after deducting expenses, two-third share of the net profit was given to the respondent Bank.

2. After considering the facts and arguments of the learned counsel for the parties, learned Single Judge came to the opinion which reads as under:

"I am of the opinion that the respondent has failed to establish that he was a tenant with respect to the said lands. The bank has successfully established that it was cultivating the lands personally through hired labour. Further the Tribunal and the authority below have resorted to erroneous approach to the matter at issue. Neither the Tribunal nor the authority below has given a finding that the respondent was a tenant with respect to the said lands. Instead, the Tribunal and the authority below have held that the respondent was not a servant of the Bank and he, therefore, is a deemed tenant as envisaged under Section 4 of the Act. The question was whether the respondent can be said to be a deemed tenant within the meaning of Section 4 of the Act and not whether he was a servant of the Bank or what was his relationship with the Bank. The respondent may or may not be the servant of the bank. He may be said to be manager or a supervisor employed by the Bank to supervise the agricultural operations on the said lands. Be that as it may, the respondent has failed to prove that he was cultivating the said lands as a tenant or that he was cultivating the said lands at all. In the cases in the above referred three judgments, the facts undisputed were that the tenant concerned was cultivating the land in question personally and that he was being paid in crop share. The facts in the said matters are quite distinguishable and the said judgments shall lend no support to the respondent herein."

3. Impugning the said judgment, learned counsel for the appellant stressed that the learned Single Judge has gone wrong in not considering the true purport and import of deeming provision of Section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act" for short) because according to learned counsel Section 4 of the Act gives a deeming clause and in this deeming fiction the land having been cultivated by the appellant should be deemed to be under his tenancy. Section 2(18) of the Act, according to learned counsel, defines the status of a tenant and according to him includes a deemed tenant under Section 4 of the Act and thus if the test of Section 2 is applied, there is no escape from the conclusion that the appellant is a tenant in terms of Section 4 of the Act because the appellant was not paid in cash and was paid in crop share if the reading of the agreement of the appellant and the respondent bank is concerned. Therefore, crop share being permanent and dominant factor, if that was the consideration between the bank and the appellant, there is no escape from the conclusion that the appellant was a deemed tenant and if he was a deemed tenant then the findings of the learned Single Judge deserve to be quashed and set aside. Learned counsel has relied on a decision of this Court in the case of Thakor Kesaji Ranaji (Decd.) By His Heirs & Lrs. Thakor Lilaji Kesaji v. Vallabhdas Parshottamdas Parikh reported in 1996(3) G.L.R. 849 and has stressed that th