( 1 ) THE appellant in this appeal is the defendant in OS. No. 63 of 1962 on the file of the II Joint Civil Judge, JD. at Bijapur. The plaintiffs instituted that suit for redemption and possession of the suit land and also claimed mesne profits from the year 1958-59 to 1960-61 and also for taking accounts. The claim of the plaintiffs was that the late Gurachar father of the plaintiffs 1 to 5 and husband of plaintiff-6 mortgaged the suit land bearing S. No. 187 of Bableshwar village with possession by executing a self-deeming mortgage for a period of sixteen years. The deed of mortgage is registered and executed on 6-1-1942 and according to that mortgage deed, the defendant was to take the usufruct of the suit land for a period of sixteen years and hand over possession back to late Gurachar. As the defendant refused to deliver possession inspite of notice the plaintiffs instituted the suit. ( 2 ) THE case of the defendant, on the other hand, is that he has been a tenant of the suit land for 30-35 years even prior to the mortgage of 1942 and he was tenant at the time of self redeeming mortgage of 1942. Therefore, after the expiry of the mortgage period of sixteen years his tenancy rights have revived and he is continuing as a tenant even after the expiry of mortgage period and therefore his possession is not unlawful. Therefore, the defendant submitted that the plaintiff is not entitled to mesne profits and cannot claim possession from him. ( 3 ) THE trial Court framed several issues and the two material issues were these : (1) Whether defendant proves that he was a tenant on the suit land at the time of the suit mortgage of 6-1-1942? (2) Whether the tenancy rights are revived to the defendant after the expiry of the usufructuary mortgage by 6-1-1958? on consideration of the entire evidence, the Court held that the defendant was cultivating the suit land as a tenant at the time of the usufructuary mortgage of 6-1-942 and therefore the defendant has proved that he was a tenant of the suit land. on consideration of the entire evidence, the Court held that the defendant was cultivating the suit land as a tenant at the time of the usufructuary mortgage of 6-1-942 and therefore the defendant has proved that he was a tenant of the suit land. The Court also held that having regard to the provision of S. 25 (A) of the Bombay Tenancy and Agricultural Lands Act, 1948, the rights of the tenants which were kept in abeyance were revived ;and therefore the plaintiffs were entitled to get a decree only for delivery of symbolical possession and not to actual physical possession. The trial court also passed a decree for an amount of Rs. 255 as rent for three years. ( 4 ) THE correctness of this decision was challenged by the plaintiffs before the Court of the District Judge at Bijapur by preferring Regular appeal No. 26 of 1963. The learned District Judge heard that appeal and by his judgment delivered on 191h August, 1966 allowed the appeal, set aside the decree of the trial Court and decreed the plaintiffs' suit. It is the correctness of this dceree that is challenged by the defendant in the second appeal. ( 5 ) IN this appeal it is contended by the learned Advocate for the appellant that the judgment of the learned appellate Judge is opposed to the provision of S. 25 (A) of the Bombay Tenancy and Agricultural Lands act, 1948 and the interpretation placed by the appellate Court upon the provision is erroneous. On the other hand, it was submitted by the learned advocate for the respondents that the issue of tenancy had to be sent for adjudication before appropriate Tribunal or Court and in any event the right of the mortgagor to get redemption was protected and the defendant was not entitled to -rely upon the provision of S. 25 (A) of the Act. I will consider each one of the submissions made by the learned Advocates for the parties. "a. On the question as to whether the issue of tenancy has to be sent for adjudication to the appropriate Tribunal, it is necessary to see as to what the plea of the defendant is. The case of the defendant is that he was a tenant at the time the mortgage was executed in 1942. "a. On the question as to whether the issue of tenancy has to be sent for adjudication to the appropriate Tribunal, it is necessary to see as to what the plea of the defendant is. The case of the defendant is that he was a tenant at the time the mortgage was executed in 1942. That means, the plea that was determined by the Court was not as to whether the defendant was a tenant at present, but what was determined was as to whether the defendant was a tenant in the past. It has now been finally pronounced by the Supreme Court in the case of Musamia Imam Haider Bax Razvi v. Rabari Govinda Bhat Ratnabhai, AIR 1969 SC 439 that if, before the Court, the question was one relating to a past tenancy, then it is for the Civil court alone to determine that question and not for the special Tribunal under the Bombay Tenancy and Agricultural Relief Act. In that case, it has been held that "s. 70 (b) of the Act imposes a duty on the Mamlatdar to decide whether a person is a tenant, but the sub-section does not cast a duty upon him to decide whether a person was or was not tenant in the past, whether recent or remote. Where the main question in the suit was the claim of the defendants that they had become statutory owners of the disputed lands because they were tenants either on the tiller's day or on the date of the release of the management by the Court of Wards, the question for decision would be not whether the defendants were tenants on the date of the suit but the question would be whether they were or were not tenants in the past. In such a case the plea of tenancy on the past two dales was not an independent question but was only a subsidiary plea put forward by the defendants as a reason for substantiating their plea for statutory ownership and the jurisdiction of the Civil Court cannot be held barred by virtue of S. 70 read with S. 85 of the Act". In my view having regard to the judgment of the Supreme Court cited above, it was the Civil court and the Civil Court alone that had the jurisdiction to decide whether the defendant proves that he was a tenant on the suit land on the date of the mortgage i. e. , 6-1-1942. That being so, the Courts below were competent to decide the issue and have upon appreciation of evidence held that the defendant was a tenant on the date of Ext. 22. There is therefore no substance in this contention advanced by the learned Advocate for the respondents. " ( 6 ) LIKEWISE there is also no substance in the contention of the respondents that the plaintiffs were protected under S. 89 (2) of the Act and the provision of S. 25 (A) cannot be applied in this case. It is necessary in this connection to remember that the provision of S. 89 (2) (b) has been considered both by the Supreme Court and also by the High Court of Bombay. It has been held by the Bombay High Court in the case of Dhondi Tukaram v. Dadoo Piraji, AIR 1954 Bom 100 that it is only pending proceedings in respect of vested rights that are saved by S. 89 (2) (b) (ii), from the operation of the Act; so that even in respect of vested rights, if a suit to enforce them is filed subsequent to the commencement of the Act, the provisions of the Act, will apply. It has been further laid down by their Lordships of the Supreme court in the case of S. N. Kamble v. Sholapur Borough Municipality, AIR 1966 SC 538 that if as a result of the amendment, the right given by the parties is taken away then a person is not entitled to rely upon the provision of s. 89 (2) (b) for the purpose of enforcement of his right. This is what has been stated in that case:" It cannot also be said the interest of the lessee-appellant as protected tenant under the Bombay Tenancy Act (1939) is saved by S. 89, (2) (b) of the Bombay Tenancy and Agricultural Lands Act (1948 ). The clause " nothing in this Act shall affect or be deemed to affect" is qualified by the words " have as expressly provided in this Act". The clause " nothing in this Act shall affect or be deemed to affect" is qualified by the words " have as expressly provided in this Act". Therefore, when there is an exprss provision in the 1948 Act, that will prevail over any right, title or interest etc. acquired before its commencement. Further the words "save as expressly provided in this act" also qualify the words "any repeal effected thereby" and even in the case of repeal of the provisions of 1939 Act if there is an express provision which affects any title, right to interest acquired before the commencement of the 1948 Act that will also not be saved. "that being the position, having regard to the wording of S. 89 (2) (b) of the act, plaintiffs' contention that they had vested right and that right was to get redemption and actual possession is unsustainable. It is also necessary to note that there was no such right vested in the present plaintiffs. Under the 1939 Act the mortgagee could claim the status of a tenant. It was only by the 1948 Act that right was taken away. Therefore, it is not possible for the plaintiffs to contend that there was any vested right which was existing even prior to 1948 and which has been taken away by the 1948 Act. Therefore, there is no substance even in this contention. ( 7 ) THE decision of the Supreme Court in the case of Jindas Oil Mills and Somalal Nethaji Shiroiya v. Godhra Electricity Co. , Ltd. , AIR 1969 SC 1225 does not apply to the facts of the present case. That is a case where the Court was interpreting the provision of S. 6 of the General Clauses Act (1897 ). We are here concerned with the wording of the Act which has been considered both by the Supreme Court and by the High Court of Bombay and as already stated, having regard to these decisions, the plaintiffs were not entitled to claim any benefit. ( 8 ) THE learned Counsel for thp respondent also relied upon a Division bench decision in the case of Shankar Kalyan Kulkarni v. Basappa Sidramappa kolar, 1969 (2) Mys. L. J. 77. In that case this is what has been laid down:" A mortgagee in possession did not become a 'deemed tenant' under S. 2a of the 1939 Bombav Tenancv Act. L. J. 77. In that case this is what has been laid down:" A mortgagee in possession did not become a 'deemed tenant' under S. 2a of the 1939 Bombav Tenancv Act. S. 4 of the 1948 Bombay tenancv and Agricultural Lands Act which states that a mortgagee in possession does not fall into the classification of 'deemed tenant' does no more then make a declaration of what the law had all along been. "in the present case, the defendant is not claiming that he was a tenant during the subsistence of the mortgage. What is being claimed is a right under S. 25 (A) of the Act. S. 25 (A) of the Bombay Tenancy and Agricultural lands Act, 1948 reads as follows :" If any land is mortgaged by landlord by way of usufructuary mortgage to a tenant cultivating such land, the tenancy of such land shall be in abeyance during the period the mortgage subsists. After the expiry of the said period, it shall not withstanding any other law for the time being in force, be 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 object of introducing S. 25a of the Act was to protect tenants, in whose favour mortgages were executed and the protection was required by the tenant when the mortgage was redeemed and it was with that object in view this provision was made. Therefore, the provision of S. 25a of the act will have to be applied to the facts of the present case. ( 9 ) A similar case came up for consideration before this Court in regular Second Appeal 436 of 1964, RSA. 436 of 1964, K. Jagannatha Shetty, J. in that case held that as the defendant was found to be in possession as a tenant on the date of the mortgage and as he was entitled to protection of S. 25a of the Bombay Tenancy and Agricultural Lands Act, 1948 the Court declined to give a decree for possession in favour of the plaintiff. There also, the benefit of S. 25a was claimed by a tenant, who has placed in a situation like the present one. There also, the benefit of S. 25a was claimed by a tenant, who has placed in a situation like the present one. I am in agreement with the view expressed by jagannatha Shetty J. and accordingly I hold that the plaintiffs are not entitled to a decree for possession of the property but the plaintiffs will be entitled to a decree for delivery of symbolical possession of the property. ( 10 ) THE learned Appellate Judge has found that the agreed rent was rs. 120 and in that view, the plaintiffs will be entitled to recover the rent for a period of three years which is agreed to between the parties and a decree is passed for Rs. 360 in favour of the plaintiffs. In view of the conclusion arrived at by me that the plaintiffs are entitled to the benefit of s. 25a of the Act, there is no implied surrender of tenancy rights by the defendant in favour of late Gurachar. It is also necessary to note that such a claim was not made by the plaintiffs in the plaint. ( 11 ) IN the result, the judgment of the learned appellate Judge is set aside and that of the trial Court is restored. The defendants do pay to the plaintiffs a sum of Ss. 360 as rent as agreed to between the parties. In the circumstances, parties will bear their own costs in all the three Courts. --- *** --- .