G. P. SINGH, C. J.

( 1 ) A learned single Judge who heard this appeal has referred the following question to be answered by a Division Bench:-

"what is the meaning and effect of the words "holds any land" occurring in Section 185 (1) of the M. P. Land Revenue Code, 1959, whether it means merely continuing in possession even after possession became unauthorised or that of a trespasser"

( 2 ) THE facts found by the learned single Judge are that the plaintiffs-appellants who held the suit lands in malik makbuza rights let out the lands to the defendant by a chilthi dated 25th April, 1957 for the year 1957-58 on Adhiya basis. The defendant had undertaken to deliver back possession on the ex-piry of the period of lease. The suit for possession was filed on 23rd September, 1969. The plea of the defendant was that he became occupancy tenant under Section 185 (1) (i) (c) of the M. P. Land Revenue Code, 1959. The learned single Judge was of the view that although the defendant continued in possession after expiry of the period of the original lease, no implied inference of assent of the plaintiffs could be drawn to the defendants' continuing in possession because the parties were engaged in litigation from the very beginning. According to the learned single Judge, the possession of the defendant after the expiry of the lease was not under any legal title.

( 3 ) IT is not in dispute that the defendant became an ordinary tenant under Section 166 of the M. P. Land Revenue Code, 1954. Explanation (i) to this section specifically included a person who paid lease money in respect of any land in the form of crop share. Section 167 of the 1954 Code laid down that except as otherwise provided, an ordinary tenant shall hold land on such terms as may be agreed upon between him and his tenure-holder. Under Section 168 of the same Code, subject to the terms of the contract, the right of an ordinary tenant was heritable. There was no statutory protection in the Code of 1954 against eviction of an ordinary tenant who was liable to ejectment in accordance with the terms agreed upon between him and his tenure-holder. In the instant case, the lease in favour of the defendant was only for one year. That lease expired on the expiry of the agricultural year 1957-58. Under the terms of the lease the defendant was liable to deliver back the possession on 1st July, 1958 and on his failure to do so, he was liable to ejectment in a suit filed by the plaintiffs. The 1954 Code was repealed and replaced by the M. P. Land Revenue Code, 1959 which came into force on 2nd October, 1959. Section 185 (1) of this Code reads as follows :-

"185 (1 ). Every person who at the coming into force of this Code holds (i) in the Mahakoshal region- (a) any land, which before the coming into force of the Madhya Pradesh Land Revenue Code, 1954 (II of 1955) was Malik-Makbuza and of which such person has been recorded as an absolute occupancy tenant; or (b) any land as an occupancy tenant as defined in the Madhya Pradesh Land Revenue Code, 1954 (II of 1955); or (c) any land as an ordinary tenant as defined in the Madhya Pradesh Land Revenue Code, 1954 (II of 1955); shall be called an occupancy tenant and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code. "

( 4 ) THE contention of the learned counsel for the plaintiffs-appellants is that the word "holds" as it occurs in Section 185 signifies a lawful title and an ordinary tenant whose lease had expired before the commencement of the 1959 Code and who was liable to ejectment under the law then in force could not be said to hold land at the coming into force of the 1959 Code and could not claim the status of an occupancy tenant. The learned counsel for the respondents, on the other hand, submitted that Section 185 (1) (i) will also cover cases of ordinary tenants whose lease had expired before the commencement of the 1959 Code but who were continuing in possessi

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