KARIA, J. ( 1 ) THIS petition under Art. 227 of the Constitution of India arises out of the judgment dated 16/04/1985, rendered in Revision application No. TEN. B. A. 787 of 1984 by the Gujarat Revenue Tribunal confirming the judgments of the Courts below and holding that the petitioners are not the tenants in respect of the land in question under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "the Bombay Tenancy Act" ). ( 2 ) IT is not in dispute that the deceased Vithaldas Kuberbhai Prajapati, the predecessor-in-title of the present petitioners, was a mortgagee in possession in respect of the land bearing Survey No. 136 admeasuring 3 acres 30 Gunthas, situated at Village Pilwai, Taluka Vijapur of Mehsana district. In 1939, a possessory mortgage was created by registered document. ( 3 ) THE respondents filed a Civil Suit No. 53 of 197 3/06/1973 for redemption of the land that was mortgaged. The deceased vithalbhai raised a plea that he cultivated the said land as a tenant since the time before the mortgage was created and, therefore, he was the tenant of the land in question. The learned Civil Judge, therefore, framed an issue relating to the tenancy of the land and referred the matter under Sec. 85a of the Bombay Tenancy Act to the Mamlatdar and A. L. T. ( 4 ) MAMLATDAR, Vijapur, initiated inquiry and by his judgment dated 19/09/1978, came to the conclusion that deceased Vithalbhai kuberbhai was not the tenant of the land in question. Vithalbhai Kuberbhai meanwhile died. The heirs and legal representatives of deceased Vithalbhai thereafter filed appeal, being Tenancy Appeal No. 512 of 1979 before the deputy Collector, Mehsana, who dismissed the appeal by his order dated 21/05/1980. The petitioners being aggrieved by the said decision of the Deputy Collector, preferred Revision Application No. TEN. B. A. 788 of 1980 before the Gujarat Revenue Tribunal. The learned Member of the tribunal allowed the revision application and remanded the matter directing the Mamlatdar and A. L. T. to hold a fresh inquiry after issuing notices to the concerned parties. ( 5 ) ON remand of the matter, Mamlatdar and A. L. T. issued necessary notices and after hearing the parties, by his judgment dated 16/12/1982, held that the petitioners were not the tenants of the land in question. ( 5 ) ON remand of the matter, Mamlatdar and A. L. T. issued necessary notices and after hearing the parties, by his judgment dated 16/12/1982, held that the petitioners were not the tenants of the land in question. Petitioners, therefore, filed Tenancy Appeal No. 129 of 1983 before the Assistant Collector, Mehsana, who by his judgment and order dated 31/03/1984, dismissed the appeal. The petitioners, feeling aggrieved by the said decision in appeal, preferred the aforesaid Revision Application No. TEN. B. A. 787 of 1984 before the Gujarat Revenue Tribunal. The learned member of the Gujarat Revenue Tribunal rejected the revision application and confirmed the judgments of the Courts below, as aforesaid. It is against this judgment that the petitioners have approached this High Court by way of the present petition. ( 6 ) MR. A. J. Patel, learned Advocate appearing for the petitioners, submitted that there is an error apparent on the face of the order of the tribunal, inasmuch as the important relevant admission on behalf of the respondent was ignored and misreading of the evidence on record has resulted into miscarriage of justice. Mr. Patel further submitted that in view of the said admission, the petitioners were entitled to be tenants under Sec. 25a of the Bombay Tenancy Act. ( 7 ) MR. Patel, in order to make good the aforesaid submission regarding admission, invited my attention to the evidence of constituted power-of-attorney of the respondent, one Shivaji Dhulaji, who was examined before the mamlatdar, Vijapur. The relevant part of the evidence relied upon by Mr. Patel, when translated into English, would read as under :"prajapati Vithalbhai Kuberbhai has been given the possession by mortgage for rs. 725/- for a period of 31 years in the month of "jeth" in S. Y. 1990. A registered document in this connection has been executed later on, i. e. , on 5-8-1937, i e. . Ashad vadi 14 of S. Y. 1994. We have filed a Civil Suit for redemption of the mortgage. " ( 8 ) ACCORDING to Mr. Patel, the registered document was executed on 5/08/1937, whereas the deceased Vithalbhai was inducted on the land before 3 years of the execution of the mortgage document, i. e. , in the year 1934. Ashad vadi 14 of S. Y. 1994. We have filed a Civil Suit for redemption of the mortgage. " ( 8 ) ACCORDING to Mr. Patel, the registered document was executed on 5/08/1937, whereas the deceased Vithalbhai was inducted on the land before 3 years of the execution of the mortgage document, i. e. , in the year 1934. It is urged that the deceased Vithalbhai was, therefore, cultivating the land as a tenant for about three years before execution of the registered mortgage document and the said tenancy was placed in abeyance on account of the execution of the mortgage document. ( 9 ) IN order to appreciate the aforesaid contention of Mr. Patel, a reference be made to Sec. 25a of the Bombay Tenancy Act. Section 25a reads as under :"25a. Tenancy to be in abeyance during usufructuary mortgage in favour of tenant. If any land is mortgaged by a landlord by way of a usufructuary mortgage to a tenant cultivating such land, the tenancy of such land shall be in abeyance during the period the mortgage subjects. After the expiry of the said period it shall, notwithstanding 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. " ( 10 ) IN order to appreciate the contention of Mr. Patel, the provisions of sec. 4 of the Bombay Tenancy Act relating to the persons to be deemed tenants are necessary to be referred to. Relevant parts of Sec. 4 of the Bombay tenancy Act are as under :"4. Persons to be deemed tenants :- 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) xxx xxx xxx (b) xxx xxx xxx (c) a mortgagee in possession. xxx xxx xxx"section 25a of the Bombay Tenancy and Agricultural Lands Act inter alia provides that "the tenancy of such land shall be in abeyance during the period the mortgage subsists". xxx xxx xxx"section 25a of the Bombay Tenancy and Agricultural Lands Act inter alia provides that "the tenancy of such land shall be in abeyance during the period the mortgage subsists". If at the time of taking the mortgage the lessee had surrendered the lease expressly or by necessary implication unless it was not open to him in law to do so, the question of tenancy or lease remaining in abeyance would not arise because a tenancy or lease can remain in abeyance if it exists or has co-existed during the subsistence of the mortgage. If expressly or by necessary implication it was surrendered or had been extinguished or had become non-existent, the question of its remaining in abeyance would not arise. In the present case, on perusal of the mortgage deed, the mortgage money was paid in the year 1934 and the deceased Vithalbhai was inducted on the land as mortgagee in possession. But the document came to be executed later on, i. e. , after three years, on 5/08/1937. The intention of the party was, therefore, clear to create the mortgage in the year 1934 itself. There is nothing on the record to show that prior to 1934 or in the year 1934 there was any relationship of landlord and tenant between the parties. Section 25a clearly lays down that it applies to a ease where a tenant has entered into the usufructuary mortgage with his landlord and becomes a usufructuary mortgagee. Clause (21) of Sec. 2 of the Bombay Tenancy Act provides that"words and expression used in this Act but not defined shall have the meaning assigned to them in the Bombay Land Revenue Code, 1879, and the Transfer of Property Act, 1882, as the case may be. " ( 11 ) IT is manifest, therefore, that the expression "usufructuary mortgage" used in Sec. 25a is to be understood in the light of what it means under the Transfer of Property Act. Section 58 of the Transfer of Property Act deals with simple mortgage by conditional sale, usufructuary mortgage, English mortgage, mortgage by deposit of title deeds and anomalous mortgage. Section 59 provides for mortgage when to be by assurance. Clauses (b) to (g) of Sec. 58 and Sec. 59 of the Transfer of Property Act draw a clear distinction between different types of mortgages. Section 59 provides for mortgage when to be by assurance. Clauses (b) to (g) of Sec. 58 and Sec. 59 of the Transfer of Property Act draw a clear distinction between different types of mortgages. What Sec. 25a of the Bombay Tenancy Act contemplates is a usufructuary mortgage, the connotation of which has been amplified by clause ( (1) of Sec. 58 of the Transfer of Property Act. With this scheme of the provisions of Sec. 25a of the Bombay Tenancy Act, the tenancy of the mortgagee, if any, would be placed in abeyance during the period the mortgage subsists. Section 25a further provides that after the expiry of the period of the mortgage, it shall, notwithstanding 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 of which he held it before the mortgage was created. ( 12 ) THE learned Member of the Gujarat Revenue Tribunal and the Courts below have not examined the case from this angle, nor have they considered the provisions of Sec. 25a of the Bombay Tenancy Act with reference to the facts and circumstances of the case. It is, therefore, necessary to send the case back to the Mamlatdar and A. L. T. to reconsider the matter. ( 13 ) THE learned Advocates for the parties have cited several authorities on the point whether the oral mortgage, if any, could be permissible under law and on the point of jurisdiction of this High Court under Art. 227 of the Constitution of India and on such other points. Since the matter is being remanded, I do not feel it proper to deal with all the authorities cited at the Bar. ( 14 ) IN the result, the petition is allowed. The impugned judgments are quashed and set aside. The matter is remanded back to the Mamlatdar and A. L. T. to consider it afresh, after giving due opportunities to the concerned parties and having regard to the provisions of Sec. 25a of the Bombay Tenancy Act and decide it according to law. Rule is made absolute accordingly. In the facts of the case, there shall be no order as to costs. .