ion from the defendants who claim to be protected tenants could be granted only by the revenue court and not by the civil court
The plaintiff respondent therefore on the basis of the decree for redemption can get only a symbolic possession and not actual physical possession for the land in dispute
414A B  CIVIL APPELLATE JURISDICTION Civil Appeals Nos
320 323 of 1971
From the Judgment dated the 8th August 1970 of the Mysore High Court in Regular Second Appeals Nos
435 437 438 515 of 1964 respectively
RB Datar for the Appellants
K Rajendra Choudhary for the Respondent
The Judgment of the Court was delivered by MISRA J
The present connected appeals by special leave are directed against the judgment of the Karnataka High Court
The dispute in these appeals relates to survey No 56
Of Mangavati P village measuring 18 acres and 30 gunthas
Different portions of the said plot were mortgaged by the respondent to different persons now arrayed as appellants in the aforesaid appeals
The respondent filed five suits for redemption and actual possession of the mortgaged land against the aforesaid mortgagees
The a suits were contested by the mortgagees and their grievance in the main was that they were tenants of the suit land prior to the mortgage and were in possession thereof as such
During the period of the mortgage their tenancy rights remained in abeyance and after redemption their tenancy rights would revive again in view of the provisions of s25A of the Bombay Tenancy and Agricultural 406 Lands Act 1948 and the respondent could not get actual possession over the disputed land despite the redemption
It was further pleaded that the respondent could not get actual possession over the disputed land from the civil court as the proper forum was a revenue court
The learned Civil Judge decreed the aforesaid five suits by separate judgments holding that the defendants were not tenants of the suit land prior to the mortgage and as such there was no question of revival of the tenancy rights after the redemption of the mortgagees under s25A of the Bombay Tenancy and Agricultural Lands Act
The mortgagor was entitled to get possession of the land after redemption of the mortgage
The judgments of the Civil Judge gave rise to five appeals which were disposed of by the District Judge
In his opinion the defendants in four suits were not the tenants of the said land prior to the date of mortgage but one of the defendants in one of the suits viz suit No 94 of 1961 was in possession of the suit land as a tenant on the date of the mortgage and so his tenancy would revive after redemption of the mortgage
He however relying on ss2A and 3A of the Bombay Tenancy Act 1939 found that the other defendants in the four suits also became deemed tenants under s2A and consequently a protected tenant under s3A of the aforesaid Act of 1939 as it stood amended in 1946 and could not be evicted from the suit land
Accordingly
all the appeals were allowed and the judgments of the trial court were modified in that the defendants were to remain in actual possession of the suit land and the plaintiff respondent would get only symbolic possession in pursuance of the decree for redemption
Feeling aggrieved by the said decision the plaintiff filed appeals before the High Court which in turn allowed the appeals and reversed the judgment of the District Judge holding that the mortgagees in possession did not become deemed tenants  under the provisions of s2A of the Act of 1939 as amended in 1946
The defendants have now come to this Court and reiterate the same points as were raised by them before the High Court
In order to appreciate the points raised in these appeals it will be appropriate at this stage to refer to the relevant provisions of the Bombay Tenancy Act 1939
Section 2A reads 407 2A I A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not a a member of the owner s family or b a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner s family unless the owner has within one year of the coming into force of the Bombay Tenancy Amendment Act 1946 made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the person is not a tenant
2 Where an application under sub section I has been made and the Mamlatdar refuses to make such declaration and the Mamlatdar s decision is not set aside by the Collector in appeal under sub section 3 of section 13 or by the Provincial Government under section 28 the person shall be deemed to be a tenant for the purposes of this Act   Section 3A reads 3A 1 Every tenant shall on the expiry of one year from the date of the coming into force of the Bombay Tenancy Amendment Act 1946 be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights unless his landlord has within the said period made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the tenant is not a protected tenant
2 Where an application under sub section I has been made and the Mamlatdar refuses to make such declaration and the Mamlatdar s decision is not set aside by the Collector in appeal under sub section 3 of section 3 408 or by the Provincial Government under section 28 the tenant shall be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights
 In 1948 the Bombay Tenancy Act 1939 was repealed and another Act that is the Bombay Tenancy and Agricultural Lands Act 1948 came into being
Section 4 of this new Act is the same as section 2A of the Act of 1939 with the only addition of a clause
It reads 4A person lawfully cultivating and land belonging to an other person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not a a member of the owner s family or b a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner s family
Or c a mortgagee in possession
Explanation I A person shall not be deemed to be a tenant under this section if such person has been on an application made by the owner of the land as provided under section 2A of the Bombay Tenancy Act 1939 declared by a competent authority not to be a tenant
Explanation II
Where any land is cultivated by a widow or a minor or a person who is subject to physical or mental disability or a serving member of the armed forces through a tenant then notwithstanding anything contained In Explanation I to clause 6 of section 2 such tenant shall be deemed to be a tenant within the meaning of this section
 It is thus obvious that there were only two conditions in order to attract the provisions of section 2A1 of the Bombay Tenancy Act 1939
But in the corresponding section 4 of the Bombay Tenancy and Agricultural Lands Act of 1948 one more condition was added in addition to the old two conditions as provided in section 2AI of the 409 Bombay Tenancy Act 1939 and that additional condition excludes the mortgagee in possession from acquiring the status of a deemed tenant  within the meaning of section 4
If the cases in hand were to be governed by the Bombay Tenancy and Agricultural Lands Act 1948 the mortgagees in possession would be out of the purview of section 4 of that Act as mortgagees in possession have been excluded from being deemed tenants 
As the Act of 1948 has no retrospective effect the suits giving rise to the aforesaid appeals will be governed by the Act of 1939
The contention raised on behalf of the appellants is that the mortgagees appellants became deemed tenants  within the meaning of section 2A of the Act of 1939 and could not be evicted from the land in suit
For the respondent on the other hand the contention was that the mortgagees have never been treated to be tenants and it will be against the uniform established view of law and this is why the mistake was realised by the legislature and a mortgagee in possession was excluded from being a deemed tenant  in the Act of 1948
It is admitted case of the parties that no application had been made by the mortgagor within one year of the coming into force of the Bombay Tenancy Amendment Act 1946 for a declaration that the mortgagees in possession were not the tenants of the disputed land as contemplated by section 2A
At one time there seemed to be a cleavage of judicial opinion on the construction of section 2A of the Act of 1939
The Gujrat High Court gave a literal construction to the provisions of section 2A1 and held that the mortgagees would become deemed tenants  in terms of section 2A The Bombay High Court and the High Court of Mysore took a contrary view
It will be advantageous to refer to these cases in some detail
In Salman Raje vs Madhavsang Banesang  Orsl the mortgage was made in 1943 and the mortgagee came in possession pursuant to the mortgage and the parties were therefore governed by the Bombay Tenancy Act of 1939 which was applied to the district of Ahmedabad on and from April 1946A Division Bench consisting of Hon ble Mr Justice JM Shelat and Hon ble Mr Justice PN Bhagwati as they then were after discussing the various decisions held There is and can be no doubt that the petitioner was cultivating the land belonging to another person ie the ___ ____ ___ 1 410 opponents and he was doing so lawfully as the usufructuary mortgage executed in his favour entitled him to its possession
The petitioner also would not fall in either of the two excepted categories
Prima facie therefore he was entitled to the benefit of ses
2A and 3A of the Act
It is also clear from the language used in sec
2A that there were only two classes of persons whom the legislature excluded from the benefit of sec
2A viz 1 the members of the owner s family and 2 his servants and hired labourers
Obviously a mortgagee in possession was not included in these two categories and was therefore not excluded from the benefit of sec
2A though the legislature must have been aware of the fact that there would be mortgagees cultivating lands belonging to mortgagors
Section 3A of the 1939 Act then provides that a tenant on expiry of one year from the date of the coming into force of the Amendment Act XXVI of 1946 was to be deemed to be a protected tenant and his rights as such protected tenant shall be recorded in the record of rights unless his landlord has within the said period made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant
 The Bombay High Court in Dinkar Bhagwant Salekar vs Babaji Mahamulkar1 on the other hand held that a mortgagee was not excluded from the benefits of section 2A1 due to an oversight by the legislature while enacting section 2A and that oversight was repaired when subsequently section 4 of the Act of 1948 was enacted
Again a Full Bench of the Bombay High Court in Jasvantrai Tricumlal vs Bai Jiwi2 had the occasion to consider the same question
It also took the view that there was a lacuna in section 2A of the 1939 Act in the sense that the mortgagee and his tenant were through mistake not excluded from the scope of section 2AI  and that lacuna was removed while enacting s4 of the Act of 1948
The 1 2 411 insertion of clause c in section 4 in the Act of 1948 was taken by the Full Bench to be a pointer to the fact that the mortgagees in possesstion were never intended to be treated as statutory tenants
In Ishwara Bhau Sawant vs Pandurang Vasudeo Karmarkar1 a Division Bench while construing section 2A of the Act of 1939 observed The words used in section 2A are undoubtedly wide
One of the presumptions in law is that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares either in express terms or by clear implication or in other words beyond the immediate scope and object of the statute
In all general matters outside these limits the law remains undisturbed
General words and phrases therefore however wide and comprehensive they may be in their literal sense
must usually be construed as being limited to the actual objects of the Act
If therefore it is possible we must so construe section 2A as to avoid general provisions of law in regard to mortgagees In Shankar Kalyan Kulkarni  Ors
vs Basappa Sidramappa Kolar  Ors2 a Division Bench of the Mysore High Court took a similar view and observed We are of the opinion that a mortgagee in possession did not become a deemed tenant under section 2A of the 1939 Act
Although a mortgagee in possession is a person lawfully cultivating the land belonging to his mortgagor he could not merely for that reason become a deemed tenant under s 2A for the reason that we should not understand the provisions of that section as resulting in the transmutation of a mortgagee in possession to a deemed tenant
A mortgagee in possession is a person who lends money to the mortgagor who mortgages his land to the mortgagee  and delivers possession of it to him to secure repayment of the sum of money borrowed by the mortgagor from the mortgagee
That mortgage creates the relationship of debtor and creditor between the mortgagor and the mortgagee and it is that relationship which subsists between 1 11 2 412 them during the period when the mortgagee is in possession of the property
The provisions of section 76 of the Transfer of Property Act regulate the rights and liabilities of the mortgagee in possession
It could not have been the intention of the legislature that these incidents of a mortgagee with possession should stand displaced in consequence of the provisions which section 2A of the 1939 Act incorporate
If they did stand superseded in that way the mortgagee would cease to be a creditor and the mortgagor would no longer be the debtor and the mortgagee could not demand or recover the mortgage debt due to him by the mortgagor
 The Salman Raje s case supra of the Gujrat High Court which had taken a contrary view itself came up for scrutiny before the Gujrat High Court in Patel Ambalal Manilal  Ors
vs Desai Jagdishchandra Naginlal  Orsl and a learned Single Judge of that High Court relying on a decision of this Court in Sidram Narsappa Kamble vs Sholapur Borough Municipality  Anr2 observed It appears with great respect to the learned Judges who decided the case of Salman Raje supra that in that case full effect has not been given to the words save as expressly provided in this Act appearing in sec
892b of the 1948 Act and in view of the decision of the Supreme Court in the case of SN Kamble supra the decision of this Court in the case of Salman Raje cannot be considered to be a good law
It should further be remembered that mortgagee in possession was specifically excluded from the category of deemed tanant by sec 4c of the 1948 Act in order to remove the anomalies created by sec
2A of the 1939 Act so far as mortgagee in possession is concerned and hence it is not likely that the legislature would have i intended to protect any right of a mortgagee in possession to be included in the category of a deemed tenant under sec
2A of the 1939 Act after sec
4c of the 1948 Act containing the provision to the contrary was enacted 1 2  413 This Court in SN Kamble s case supra had an occasion to consider the impact of the saving section 892b of the Act of 1948 and held  but the effect of the express provision contained in section 881a clearly is that section 31 must be treated as non existent so far as lands held on lease from a local authority are concerned and in effect therefore section 881a must be held to say that there will be no protection under the 1948 Act for protected tenants under the 1939 Act so far as lands held on lease from a local authority are concerned
It was not necessary that the express provision should in so many words say that there will be no protected tenants after the 1948 Act came into force with respect to land held on lease from a local authority
The intention from the express words of section 881 is clearly the same and therefore there is no difficulty in holding that there is an express provision in the 1948 Act which lays down that there will be no protected tenant of lands held on lease from a local authority
In view of this express provision contained in section 881a the appellant cannot claim the benefit of section 31 nor can it be said that his interest as protected tenant is saved by section 892b
This in our opinion is the plain effect of the provisions contained in section 31 section 88 and section 892b of the 1948 Act In view of the aforesaid decision of this Court it cannot be argued for a moment that a mortgagee in possession becomes a deemed tenant under section 2A of the Act of 1939 on the strength of the saving provision in section 892b of the Act of 1948
The contention of the appellants that they became deemed tenants under section 2A of the Act of 1939 has no force and cannot be accepted
The appellants can however still succeed on the ground that it was open to the plaintiff respondent to file an application for declaration before the Mamlatdar that the defendants were not tenants within one year of the coming into force of the Amendment Act of 1946 as provided in sections 2A and 3A of the Act of 1919
But he did not choose to do so and therefore he lost whatever right he had
There is yet another ground why the plaintiff 414 respondent could not evict the defendants
A relief for actual possession from the defendants who claimed to be protected tenants could be granted only by the revenue court and not by the civil court
The plaintiff respondent therefore on the basis of the decree for redemption can get only a symbolic possession and not actual physical possession for the land in dispute
For the foregoing discussion the appeals must succeed
They are accordingly allowed and the judgment and decrees of the High Court are set aside and that of the first appellate court is restored but on a slightly different ground
In the circumstances of the case the parties shall bear their own costs
APJ Appeals allowed


Summary:
The respondent mortgaged different portions of a plot of land to different persons
Five suits for redemption and actual possession of the mortgaged land against the mortgagees were filed who contested the suits on the grounds that they were tenants of the suit land prior to the mortgage and were in possession thereof as such that during the period of mortgage their tenancy rights remained in abeyance and after redemption their tenancy rights would revive again in view of the provisions of section 25A of the Bombay Tenancy and Agricultural Lands Act 1948 and consequently the respondent could not get actual possession
It was further contended that the respondent could not get actual possession over the disputed land from the civil court as the proper forum was a revenue court The Civil Judge decreed the suits for possession holding that the defendants were not tenants of the suit land prior to the mortgage and as such there was no question of revival of tenancy rights under section 25A of Act 404 In appeals the District Judge held that in only one suit the defendant was in possession of the suit land as a tenant on the date of the mortgage and so his tenancy would revive after redemption of the mortgage However relying on sections 2A and 3A of the Bombay Tenancy Act 1939 it was held that the defendants in the other four suits also became deemed tenants under section 2A and consequently a protected tenant under section 3A of the said Act as it stood amended in 1946 and could not therefore be evicted from the suit land
All the appeals were therefore allowed the defendants permitted to remain in actual possession of the suit land and the plaintiff respondent getting only symbolic possession
The plaintiff filed appeals and the High Court reversed the judgment of the District Judge holding that the mortgagees in possession did not become deemed tenants  under the provisions of section 2A of the Act of 1939 as amended in 1946
The respondent defendants appealed to this Court
Allowing the appeals  HELD 1A mortgagee in possession cannot become a deemed tenant under section 2A of the Bombay Tenancy Act of 1939 on the strength of the saving provision in section 892b of the Bombay Tenancy and Agricultural Lands Act of 1948
413F Sidram Narsappa Kamble vs Sholapur Borough Municipality Salman Raje vs Madhavsang Banesang  Ors 4 Guj
LR 817 and Ishwara Bhau Sawant vs Pandurang Vasudeo Karmarkar  overruled
Dinkar Bhagwant Salekar vs Babaji Mahamulkar 59 Bom
L R 101 and Jaswantrai Tricumlal vs Bai Jiwi 59 Bom
L R 168 Shankar Kalyan Kulkarni Ors
vs Basappa Sidramappa Kolar  Ors
19692 Mys
LJ77 and Patel Ambalal Manilal  Ors
vs Desai Jagdishchandra Naginlal  Ors
17 Guj
LR 578 approved
Two conditions were necessary in order to attract the provisions of section 2AI of the Bombay Tenancy Act 1939
But in the corresponding section 4 of the Bombay Tenancy and Agricultural Lands Act of 1948 one more condition was added in addition to the old two conditions as provided in section 2AI of the Bombay Tenancy Act 1939 and that additional condition excludes the mortgagee in possession from acquiring the status of a deemed tenant  within the meaning of section 4
If the cases in hand were to be governed by the Bombay Tenancy and Agricultural Lands Act 1948 the mortgagees in possession would be out of the purview of section 4 of that Act 405 as mortgagees in possession have been excluded from being deemed tenants 
As the Act of 1948 has no retrospective effect the suits giving rise to the aforesaid appeals will be governed by the Act of 1939
408H 409A B 3
In the instant case the plaintiff respondent was entitled to file an application for declaration before the Mamlatdar that the defendants were not tenants within one year of the coming into force of the Amendment Act of 1946 as provided in sections 2A and 3A of the 1939
But he did not choose to do so and therefore he lost whatever right he had
413G H