ORDER-This is a revision petition arising out of a reference under section 125 (1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (hereinafter referred to as the New Tenancy Act, made by the Civil Judge, Senior Division, Wardha in respect of khasra No. 36 (previously numbered as khasra No. 65) of mauza Yelikeli, which was the subject matter of a Civil Suit No. 81 of 1961 filed by applicant Nanaji against the non applicants for redemption and possession. The following issues were referred to the Revenue Authority for decision:- (1) Whether the deed in dispute dated 31-3-1884 was a mortgage deed or a lease-deed ? (2) Considering (1) above, whether the defendants were correctly recorded as tenants of the land in suit under the Bombay Tenancy ACM (3) Effect of the above? The deed dated 31-3-1884, which is styled as a Theka patra was the subject matter of a previous litigation between Rama and Hari (predecessors-in-title of the present applicant) and Waman (predecessor-in-title of non-applicants) and others. By virtue of this Thekapatra, the field was assigned to one Ramji, the predecessor-in. title of the non-applicants for a term of 77 years from 31-3-1884to 31-3-1961 in full satisfaction of the debt of Rs. 748-15-0 which was due to Ramji. In Civil Suit No. 62 of 1921 filed by Rama and Hari one of the issues raised was whether the Thekapatra referred to above was a lease or a usufructuary mortgage. The finding of the 3rd Subordinate Judge, Wardha dated 23-12-1921 in the aforesaid suit was as follows;- "11. Following the above authorities, I have not the least hesitation in holding and I accordingly so hold on these issues that the document (Ex. D. 1) of 31-3-1884 is a usufructuary mortgage and not a lease and that in accordance with the terms of the said document the plaintiffs are entitled to redeem and claim possession of the property even before the expiry of the period fixed by that document," The matter was taken up in appeal to the District Judge, Wardha (Civil Appeal No. 14 of 1922). The District Judge in his judgment dated 15-6-1922 confirmed the finding of the original Court that the document in dispute was a mortgage deed but held that the plaintiffs were not entitled to redeem it except on payment of the full amount mentioned in the deed. The District Judge in his judgment dated 15-6-1922 confirmed the finding of the original Court that the document in dispute was a mortgage deed but held that the plaintiffs were not entitled to redeem it except on payment of the full amount mentioned in the deed. In the Second Appeal (No. 397 of 1922), to the Additional Judicial Commissioner, the parties did not contest the issue as to whether the document was a lease or a usufructuary mortgage. The Additional Judicial Commissioner decided the appeal on the footing that the document was a mortgage-deed and observed as follows:- "The one intention that pervades throughout the deed is to secure undisturbed possession to the mortgagee over the field mortgaged for the full term of 77 years specified therein. It does not appear that the intention was to curtail the period of the mort gage’s enjoyment of the usufruct of the land during any portion of the term. The stipulation for the payment of principal money together with interest for 77 years without the liability on the part of the mortgagee to account for profits already appropriated, appears to have been inserted in the deed by way of a further assurance or guarantee or covenant for securing peaceful, quiet and undisturbed enjoyment of the mortgaged premises to the mortgagee for the full term of 77 years, and for providing against all kinds of disturbance, of such possession before the expiry of such term whether they be at the hands of the mortgagor or his kinsmen or anybody else. Such a covenant for quiet enjoyment could not be a clog on the equity of redemption or a penal provision which the Courts will endeavor to relieve against. If an earlier redemption of the mortgage was at all contemplated which, however, to my min~, does not seem to be likely, such redemption could under no circumstances be, except in compliance with the stipulations contained in the mortgage deed. On the whole, I think the intention of the parties to the mortgage in suit baa been correctly interpreted and gathered and the present suit for redemption has been rightly dismissed as premature," The parties did not consequently take any action till af1ier the expiry of the stipulated period of 77 years. On the whole, I think the intention of the parties to the mortgage in suit baa been correctly interpreted and gathered and the present suit for redemption has been rightly dismissed as premature," The parties did not consequently take any action till af1ier the expiry of the stipulated period of 77 years. The suit out of which the present reference under section 125 of the New Tenancy Act has arisen, was filed after 31-3-1961 -the date of expiry of the period of the usufructuary mortgage. In this suit, one of the issues raised on behalf of the non-applicants was that the document in question was a lease and that they had consequently become tenants of the field under the New Tenancy Act. 2. The issues referred by the Civil Court were tried by Tahsildar, Wardha, who passed an order on 5-3-1962 holding that the document in question was a lease and that the non-applicants have been correctly recorded as tenants. Ria view was that the decision of the Civil Courts that the document was a usufruotuary mortgage did not operate as res judicata or estoppels and that the part were at liberty to agitate the issue again. He, therefore, examined the terms of the document and held that it amounted to a lease and that the non-applicants were tenants. The applicant preferred an appeal to the Sub-Divisional Officer but it was dismissed. On the point of res judicata, the Sub Divisional Officer observed as follows:- . "5. Interpretation of the document dated 31-3-1884 is quite necessary but prior the that it has to be seen whether the principle of rea judicata would be applicable. Perusrj of all the judgments-original and appellate-in old civil case would show that the judge having original jurisdiction held the document to be usufructuary mortgage deed but the first appellate Court did not think it necessary to decide the il!8ue. In the second appeal, there being agreement between the parties during the argument stage that the deed should be treated as usufructuary mortgage no decision on the issue was taken. Thus the point was not heard at length and decided finally, the principle of rea judicata and of estoppel could not apply in this case. In my opinion, therefore, the Tahsildar was right in interpreting the document independently." As regards the terms of the document, his view was reoorded thus:- "6. Thus the point was not heard at length and decided finally, the principle of rea judicata and of estoppel could not apply in this case. In my opinion, therefore, the Tahsildar was right in interpreting the document independently." As regards the terms of the document, his view was reoorded thus:- "6. Contents of the document which is termed as Theka Patil show that it was lease deed for a long period (77 years). They also indicate that by the execution of the deed, the relationship between the parties of debtor and creditor ended instead of being created as in the case of mortgage deed and that old dues have taken the place of the principal amount. No doubt the condition of interest inserted in the deed makes provision for redemption but that would not suffice to brand the nature of deed as usufructuary mortgage. I agree with the view that the document has to be construed not according the what it is termed but as per what its contents amount to. The present document-does not lose the nature of long term lease and, therefore, I find no reason to differ from the Tahsildar. " His concluding observations were:- "7. Entry of the respondents names in the record-of-rights continued to be unchallenged and 80 also that the tents list which was duly published. As the respondents continued to be in possession of the suit field long since, they could rightly be declared as tenants and not liable to be dispossessed." It is against this order of the Sub-Divisional Officer that the present application for revision has been filed by the applicant .. 3. The only issue for consideration in this case is whether the Courts below were right in ignoring the previous decision of the civil Court as to the nature of the document dated 31-3-1884 and giving their independent finding. It is contended by Shri B. A. Masodkar, learned counsel for the applicant, that the finding of the Subordinate Judge, Wardha that the document in question was a usufructuary mortgage having been maintained by the District Judge and the Additional Judicial Commissioner operated as res judicata, the Courts below were in error in coming to their own finding finding of the Of the Court. Shri S. N. Kherdekar, learned counsel for the non-applicants, on the other hand, contended that the decision of the Civil Court could not operatic as res judicata in this case as under section 8 (4) of the New Tenancy Act the Tenancy Court was empowered to go into the nature of the transaction. It is besides pointed out that the issue could not be said to have been "heard and finally decided" inasmuch as the final decision of the Additional Judicial Commissioner was virtually based on the admission of a counsel. It is argued that a decision based on an admission could not operate as rea judicata. 4. I have carefully gone through the judgments of the three civil Courts -Subordinate Judge, District Judge and Additional Judicial Commissioner and consider that the issue in question was heard and finally decided. In the Court of the Subordinate Judge, the issue was regularly tried and in paragraph 11 of the judgment (reproduced already in paragraph 1 above) an unequivocal finding was given that the document was a usufructuary mortgage. This finding was subsequently confirmed by the District Judge and he held that the mortgagee was entitled to remain in possession for 77 years unless the plaintiff will prepared to fulfill the "onerous" terms of the mortgage by paying the heavy sum of over Rs. 5,000. The Judicial Commissioner also eventually maintained the finding and held that the District Judge had correctly interpreted the document. The mere fact that the issue whether the document in question was a lease or a usufructuary mortgage was not again pressed before the Additional Judicial Commissioner does not mean that the issue was not heard and finally decided. There is thus no doubt that the finding of the civil Court, which was given so far back as 1924 when that Court had exclusive jurisdiction, has become final and binding on the parties and they are estopped from raising the same issue over again. As observed by the Maharashtra Revenue Tribunal in Pannalal v. Keru (1) the relationship of the parties has gone from the domain of contract to the domain of judgment. 5. Section 8 (4) of the New Tenancy Act referred to by Shri Kherdekar is not applicable to the instant case as the instant proceedings are not under that section. As observed by the Maharashtra Revenue Tribunal in Pannalal v. Keru (1) the relationship of the parties has gone from the domain of contract to the domain of judgment. 5. Section 8 (4) of the New Tenancy Act referred to by Shri Kherdekar is not applicable to the instant case as the instant proceedings are not under that section. Under section 100 (2) of the New Tenancy Act, the Tahsildar is empowered to decide whether a person is a tenant. For this purpose what was before the trial Court in the instant case was the document dated 31-3-1884, the nature of which had already been decided by a civil Court of competent jurisdiction and the decision had been acted upon by the parties as it was binding on them. The only question to be decided in this case was, therefore, whether having regard to the fact that the possession of the non-applicants which was based exclusively on the document, which has been held to be a usufruotuary mortgage, was that of tenants. That such persons could not be deemed to be tenants under the New Tenancy Act is made clear by this Tribunal in Namileo v. Vithoba (2). 6. The only other ground mentioned by the Courts below in justification of the names of the non-applicants being allowed to continue as tenants is that the applicant had failed to object to the entry in the tenants list or the record of-rights register. This is neither here nor there; for such entries do not create legal relationship. As held by this Tribunal in Sampat v. Rajaram (3), the entries in the tenants list are not conclusive or sacrosanct. 7. The result is that this revision petition must succeed. The orders of the Courts below are accordingly set aside and it is directed that the i88uea referred by the civil Court; shall be answered thus:- (I) The document is a usufructuary mortgage as already held by the Subordinate Judge, Wardha in Civil Suit No. 62 of 1921-a. finding which was subsequently upheld by the District Judge and the Additional Judicial Commissioner. (2) The non-applicants are not correctly recorded as tenants under the Bombay Tenancy Act. (3) The names of the non-applicants will have to be deleted from the tenants list. Revision petition allowed.