JUDGMENT - A.B. PALKAR, J.:---These two petitions pertaining to the same property in respect of similar dispute between the parties were heard together by consent of the learned Counsel for the parties are being disposed of by common judgment. 2.The litigation between parties is pending since long there have been number of proceedings which came up to this Court and in order to appreciate the real controversy, it is necessary to have a bird's eye view at the history of the litigation 3.The land in dispute is Survey No. 42, admeasuring 8 Acres and 21 gunthas (3 Hectares 55 Ares), situated at village Mehun, Taluka Edlabad, District Jalgaon which has been given Block No. 116 after implementation of the consolidation scheme. 4.Hari Vithoba Choudhari was the original owner of the land who transferred it in favour of Dattatraya Kulkarni by a registered document dated 16th April, 1941, styled as a conditional sale deed also placed Dattatraya Kulkarni in possession of the aforesaid property. Dattatraya Kulkarni inducted one Chavdas Totaram as tenant in the said property some time in 1947-48, i.e. precisely before coming into force of the Bombay Tenancy Agricultural Lands Act, 1948 (B.T. A.L. Act). In respect of this tenancy, an entry was made in the revenue record bearing mutation entry No. 736 on 11-3-1950 the said entry continued to be in the revenue record thereafter. Although the document is styled as conditional sale deed, it is obvious that it was a mortgage transaction in any case between the heirs of the original owner the heirs of deceased Dattatraya, there is no dispute regarding the relationship of mortgagor mortgagee. Dattatraya Kulkarni died on 25-2-1957 the name of his widow Durgabai came to be recorded in the revenue record as owner of the land. Since Durgabai was a widow on 1-4-1957 (tillers day), the right of purchase of the tenant was postponed entry to that effect was made in the revenue record. 5.Present respondent in both the proceedings, namely Smt. Papilabai w/o Baburao Patil is the daughter of Hari Vithoba. She filed a suit for redemption of mortgage in the Court of Civil Judge, Junior Division, Bhusawal bearing Regular Civil Suit No. 127 of 1977. 5.Present respondent in both the proceedings, namely Smt. Papilabai w/o Baburao Patil is the daughter of Hari Vithoba. She filed a suit for redemption of mortgage in the Court of Civil Judge, Junior Division, Bhusawal bearing Regular Civil Suit No. 127 of 1977. What is material to be borne in mind in respect of this suit is, Durgabai, widow of Dattatraya was defendant No. 1 in the suit, whereas Chavdas Motiram whose name appeared in the revenue record as tenant of Dattatraya Kulkarni right from 1947-48 was joined as defendant No. 2. This suit came to be decided by a compromise purshis which terms of compromise were arrived between Papilabai, the land holder (heiress of mortgagor) Durgabai Kulkarni (heiress of mortgagee). However, when they arrived at compromise, first thing that was done by the plaintiff in the suit was to file a purshis requesting the Court to delete the name of defendant No. 2 who was claiming a very valuable right of tenancy in the suit land on request of the plaintiff, the name of Chavdas Motiram defendant No. 2 came to be deleted after which compromise was recorded between Papilabai Durgabai and a decree was passed with consent of Durgabai only against her for redemption of mortgage consequently delivery of possession. The request for deleting the name of defendant No. 2 later for passing a compromise decree between plaintiff defendant No. 1 i.e. Papilabai Durgabai was made on the same day. However, that compromise was recorded after deletion of the name of the defendant No. 2 Chavdas. 6.After this consent decree, respondent Papilabai filed execution proceedings bearing Regular Darkhast No. 86 of 1989 against Durgabai, wherein the names of heirs of original defendant No. 2 Chavdas were mentioned as an obstructionist. However, heirs of Chavdas appeared objected to the execution of the decree. The objections were at Exhibit 23 7 Exhibit 50 in the Regular Darkhast No. 86 of 1989. 7.In the compromise entered into between Papilabai Durgabai in Regular Civil Suit No. 127 of 1977, after deletion of the name of Chavdas, it was mentioned that Chavdas was claiming to be a tenant of the suit land necessary orders in respect of his right be obtained from the competent revenue authority (Tahsildar). 7.In the compromise entered into between Papilabai Durgabai in Regular Civil Suit No. 127 of 1977, after deletion of the name of Chavdas, it was mentioned that Chavdas was claiming to be a tenant of the suit land necessary orders in respect of his right be obtained from the competent revenue authority (Tahsildar). 8.Prior to the filing of the Regular Darkhast No. 86 of 1989, Papilabai had filed an application to the Tahsildar on 20-2-1978, claiming two different reliefs, (i) a declaration to the effect that Chavdas was not a tenant of the land (ii) in the alternative a certificate was claimed under section 88-C of the B.T. A.L. Act in case it was found that Chavdas was tenant. 9.The Tahsildar registered the said application as Tenancy Case No. 11/1978 after contest between parties held by order dated 28-6-1985 that Chavdas was tenant in the suit land. However, after considering the income of Papilabai the other circumstances required, he granted her a certificate under section 88-C of the B.T. A.L. Act. 10.Two different appeals were filed against this order. This heirs of Chavdas filed Tenancy Appeal No. 19 of 1980, against the certificate granted under section 88-C, whereas Papilabi filed Tenancy Appeal No. 26 of 1980, challenging the declaration that Chavdas was tenant in the land. Both the appeals were disposed of by a common judgment. The learned Sub-Divisional Officer, Jalgaon by order dated 26-2-1985, confirmed both the findings dismissing the said appeals. Against the order granting certificate under section 88-C in favour of Papilabai, the heirs of Chavdas filed Writ Petition No. 3045 of 1985 in this Court, which was summarily dismissed on 8-8-1985 and as such the certificate issued under section 88-C in favour of Papilabai has become final. The order of the Sub-Divisional Officer in the Tenancy Appeal was challenged before the Maharashtra Revenue Tribunal in Revision Application No. Tenancy Application 166 of 1985. By order dated 30-10-1991, the Maharashtra Revenue Tribunal set aside the order of the Tahsildar and consequent order in the aforesaid appeal and held that Chavdas or his heirs were not tenants in the suit land. 11.As is seen from the earlier stated facts, prior to this, the Regular Darkhast No. 86 of 1989 had already been filed. By order dated 30-10-1991, the Maharashtra Revenue Tribunal set aside the order of the Tahsildar and consequent order in the aforesaid appeal and held that Chavdas or his heirs were not tenants in the suit land. 11.As is seen from the earlier stated facts, prior to this, the Regular Darkhast No. 86 of 1989 had already been filed. The present Writ Petition No. 184 of 1992, is filed against the order of Maharashtra Revenue Tribunal by the heirs of Chavdas challenging the finding that Chavdas was not a tenant. On 6th August, 1990, an application was filed by the heirs of Chavdas before the Court executing the decree (Ex. 31) claiming stay of the execution proceedings, but same was rejected on 21-1-1991. The said order was challenged in Civil Revision Application No. 511 of 1991 before this Court. This Court admitted the petition and granted stay, but on 6-12-1991, the said revision was dismissed and thereafter on 16-3-1992 the Executing Court also dismissed another application filed by heirs of Chavdas claiming that the decree was not executable, was not binding on them and it was also obtained by fraud. However, this was by way of an objection at Exh. 50 and was not filed as an application. Although an objection, it was styled as additional written statement. The order of Executing Court dismissing the objection was challenged before the District Court and the learned Additional District Judge earlier stayed the proceedings but ultimately confirmed the order of the Executing Court in Regular Civil Appeal No. 87 of 1992. Earlier the stay order had been challenged before this Court in Civil Revision Application Nos. 1075 of 1994 and 1076 of 1994. This Court had direct the learned Additional District Judge to decide the said Appeal No. 87 of 1992 within a period of eight weeks by order dated 16-2-1995 and had stayed the warrant of possession for a period of six weeks. It is clear from the facts which have come on record that in between this period i.e. when the stay order came to an end after six weeks were over, the Executing Court was moved for a fresh warrant of possession, some time on 29th March, 1994 when the date already fixed for taking further steps by the decree holder was 21st April, 1994. The Executing Court did not give any fresh notice to the heirs of Chavdas who were parties on record although the case was fixed for 21st April, 1994 and issued warrant of possession, which was executed and the heirs of Chavdas were dispossessed and Papilabai obtained possession on 31-3-1995. 12.Thereafter the present petitioners filed Civil Application No. 2475 of 1995 for restoration of possession and by a speaking order dated 21-4-1995, this Court prohibited both the parties from entering into the land, which order is in operation till today. According to the petitioners, in spite of the fact that this order is in operation, the land holder Papilabai entered into possession of the land in August, 1997 in flagrant disregard of the said order and also filed an application for making entry of her name in the revenue record as person in possession and, therefore, Civil Application No. 339 of 1998, has been filed for taking action against her for contempt of the order of this Court which was also heard along with the writ petition and the Civil Revision Application. 13.From the above narration, it is obvious that most of the facts being facts of record are not in dispute at this stage. What is in dispute is:- i) Whether the transaction evidenced by the document dated 16th April, 1941 was a mortgage or a sale transaction, ii) Whether deceased Chavdas was a tenant in the land and if so, whether even after redemption of mortgage by Papilabai he continues to be tenant. What is in dispute is:- i) Whether the transaction evidenced by the document dated 16th April, 1941 was a mortgage or a sale transaction, ii) Whether deceased Chavdas was a tenant in the land and if so, whether even after redemption of mortgage by Papilabai he continues to be tenant. iii) Whether the decree obtained against Chavdas after deleting his name from the array of defendants by Papilabai against Durgabai can be said to be binding on him only because he had otherwise knowledge of the decree passed between Papilabai and Durgabai; iv) What is the effect on the right of a tenant inducted by a mortgagee of an agricultural land on the rights of mortgagor after redemption specially in view of the provisions of section 4 of the B.T. A.L. Act and in the facts and circumstances of this case when the rights of the tenant were enlarged by a legislation which came into force after induction of the tenant, which on a later date conferred on the tenant statutory right of purchase, though in this case admittedly the said right was postponed during the period, the landlord was a person under disability (widow) (v) Whether the executing Court was justified in issuing warrant of possession at different times and whether the said warrant, could be executed against the heirs of Chavdas. 14.At this stage it is not and it cannot be disputed that the certificate granted under section 88-C in favour of Papilabai has become final in view of the dismissal of Writ Petition No. 3045 of 1985 vide order dated 8-8-1985, filed against the order granting certificate. 15.At the cost of repetition, I would like to point out that the conduct of the respondent in securing a compromise decree after deleting the name of Chavdas from the array of defendants was to say the least unfair. The respondent who had filed the suit for redemption of mortgage was fully aware that Chavdas has been consistently claiming tenancy right in the filed and this right could not be decided upon by the Civil Court. If an issue had been framed in respect of tenancy of Chavdas in the said suit, then it was incumbent on the Civil Court to make a reference to the Tahsildar for decision of that issue. If an issue had been framed in respect of tenancy of Chavdas in the said suit, then it was incumbent on the Civil Court to make a reference to the Tahsildar for decision of that issue. Even if the issue had been decided against Chavdas by the Tahsildar, the plaintiff could have obtained possession only after executing the decree against Chavdas had be continued to be a defendant in the suit. The deletion of the name of Chavdas from the array of parties had the necessary consequence that the 'decree passed' either with consent or after contest between Papilabai and Durgabai would not be binding on Chavdas or his heirs at all. It is really unfortunate that even the learned Additional District Judge who decided Civil Appeal No. 87 of 1992, against the order passed on Exh. 50 by the executing Court in Darkhast No. 86 of 1989, had misdirected herself by holding that the fact that Chavdas was originally party to the suit and had, therefore, knowledge of the decree as tantamount to making the decree binding on him. Such a knowledge of a decree passed between the plaintiff and defendant No. 1 in the said suit has absolutely no effect of making the decree binding on Chavdas and as such it was not executable against him. 16.Another aspect of the matter is that obviously the respondent was aware that if the decree is tried to be executed against heirs of Chavdas, they are bound to resist the delivery of possession and, therefore, a novel method was used by showing them as obstructionists in the Darkhast Application itself. In normal course when a party obstructs the execution of decree relating to possession, then thereafter the decree holder moves and application under Order 21, Rule 97 of the Code of Civil Procedure for removal of the obstruction and the obstructionist is noticed and heard. The Court has then to decide whether the obstructionist has right independent of the judgment debtor or is claiming to be in possession through the judgment debtor. No person can obstruct to the execution if he claims through the judgment debtor but if he has independent right, then his objection has to be considered and if accepted, the decree for possession cannot be executed against him. No person can obstruct to the execution if he claims through the judgment debtor but if he has independent right, then his objection has to be considered and if accepted, the decree for possession cannot be executed against him. It was obviously an attempt on the part of respondent to pre-empt or abort the action of the heirs of Chavdas in obstructing to the execution of the decree by mentioning them as obstructionist in the darkhast itself. 17.So far as the question of nature of document of 1941 is concerned, I do not think that even though there is no judicial finding on the issue, that point can survive now as the heirs of the mortgagee, namely Durgabai consented to the decree of redemption being passed accepting that it was a mortgage and thereby accepted that amount advanced was loan and the document was executed for security. Even otherwise on the face of it, this document of conditional sale executed on 16th April, 1941, clearly shows that the condition of re-purchase was incorporated in the same document and the presumption is that it was mortgage and not a sale. The condition that in the absence of re-purchase within a particular period the sale would become final would be a clog on the equity of redemption of the mortgagor. Therefore, the suit for redemption of mortgage was rightly filed and only because Durgabai consented to a decree being passed for redemption of mortgage after accepting whatever amount was offered as due, the nature of the document need not be suspected. 18.However, certain assertions in this document are material for the discussion of legal aspects involved in the matter. In this document of 16-4-1941, which as pointed out earlier is a mortgage by conditional sale, it is clearly stated that even the mortgagor Hari Vithoba Chaudhari was not himself cultivating the land. He has stated that the suit land was given for cultivation as a tenant to one Bulakhi Marathe, r/o Changdeo for a period of six years on 14-6-1937. However, before the expiry of the period of lease, he had obtained a document from the said person and had also taken possession and the said person having given up further right of cultivating the land and having surrendered possession, he has handed over the possession receipt and the document of tenancy to the mortgagee Dattatraya Kulkarni. However, before the expiry of the period of lease, he had obtained a document from the said person and had also taken possession and the said person having given up further right of cultivating the land and having surrendered possession, he has handed over the possession receipt and the document of tenancy to the mortgagee Dattatraya Kulkarni. Hari Vithoba was resident of Changdeo which is in Edlabad Taluka, the land is also situated and Mehun in the same Taluka, whereas Dattatraya was a resident of Jalgaon and being at a distance of more than 40 kms. from the land, in normal course it was not possible for him to cultivate the suit land personally. In the said year 1941, the B.T. A.L. Act was not in force and, therefore, it was not unusual on the part of Dattatraya Kulkarni to give the land on lease to Chavdas. The name of Chavdas was entered in the revenue record as a tenant . Even thereafter on tillers day, the land holder Durgabai being a widow, a further entry came to be recorded that the right of purchase of the tenant was postponed. These facts as well as the contentions of Chavdas and his evidence regarding the tenancy, the appearance of his name as tenant in the revenue record throughout and the production of various land revenue receipts and Money order receipts by him along with his testimony were rightly considered by the learned Tahsildar and the Appellate Authority while recording a finding that he was tenant in the suit land. Even as on today in view of the fact that the certificate under section 88-C of the B.T. A.L. Act has become final, it remains a fact that the said certificate has been issued in favour of the landlord and as against a tenant, thereby indirectly the finding that Chavdas was tenant and, therefore, the respondent was entitled to a certificate in view of the circumstances established by her as required by the provisions of section 88-C making the provisions of section 32 to 32-R of the B.T. A.L. Act inapplicable to the land in dispute, has also become final and remains undisturbed. The Revenue Tribunal could only entertain Revision Application against the declaration of tenancy right of Chavdas. The Revenue Tribunal could only entertain Revision Application against the declaration of tenancy right of Chavdas. The judgment of the Revenue Tribunal was delivered on 30-10-1991 prior to which the certificate under section 88-C had become final by dismissal of Writ Petition No. 3045 of 1985, on 8th August, 1985. The Tahsildar had passed a common order against which two different appeals were carried by the parties to the Sub-Divisional Officer, who also passed a common order which was challenged before the Maharashtra Revenue Tribunal and the Maharashtra Revenue Tribunal, did not seriously consider the effect of the fact that the certificate under section 88-C had become final. The Maharashtra Revenue Tribunal, was obviously deciding only the issue of tenancy which was challenged before it. The certificate under section 88-C confirmed by the Appellate Court exercising powers of Collector could not be challenged before the Maharashtra Revenue Tribunal, in revision in view of section 88(5) of the Act. 19.Thus, firstly on facts the decree was not binding on Chavdas or his legal heirs could not be executed against them. Before I proceed to consider the legal aspect in respect of right of tenancy in view of the fact that the transaction between the original owner Dattatraya Kulkarni was a mortgage, it would be necessary to point out that even presuming for a while that Chavdas was not a tenant was only a trespasser, the fact remains that he was continuously in possession at least right from the year 1947- 48 his name appeared in the revenue record, therefore, in order to seek a decree of possession against him, it was necessary to join him as a party consequently a decree obtained against the mortgagee after deleting the name of the person in actual possession could not be executed against him irrespective of the fact that he was or was not a tenant. However, unfortunately this aspect of the matter was not taken into consideration by the executing Court as well as by the learned District Judge warrant of possession was executed in a very curious situation when the stay had become inoperative but the proceedings were pending before the High Court when a future date was fixed for taking steps by the decree holder, about three weeks before that an application was moved for issuance of possession warrant. The learned Judge was aware that the matter is fixed for a later date for taking steps by the decree holder and in view of the history of litigation the fact that the matter was pending before the High Court, the learned Judge should have at least issued a notice to the so called obstructionist (heirs of Chavdas) before passing an order for delivery of possession. Some how or the other the respondent secured a warrant of possession even before the date fixed for taking steps by her in the Darkhast proceedings the warrant was executed, which necessitated the interference by this Court by order dated 21st April, 1995 learned Single Judge of this Court (Chapalgaonker, J.,) directed in Civil Application No. 2475 of 1995, that both the parties are restrained from entering into the land. 20.This takes me to consider the legal aspects of the matter. The learned District Judge as well as the learned Members of the Division Bench of the Maharashtra Revenue Tribunal, have fallen in a serious error in applying the law laid down in respect of tenants of a mortgagee of an urban property when admittedly the suit property was an agricultural land there is a world of difference between the law applicable to the tenant of a mortgagee of agricultural land to the tenant of a mortgagee of an urban or a house property after the redemption of mortgage. 21.The Apex Court has decided this and has also pointed out the distinction between the two type of tenancies created (i) by mortgagee of urban property (ii) by mortgagee of agricultural land. In A.I.R. 1964 S.C. 1320 (Dahya Lala others v. Rasul Mahomed and others)1, the Supreme Court has considered the case of a tenant of agricultural land inducted by mortgagee in possession has pointed out in Paragraph No. 6. "The Act of 1948, it is undisputed seeks to encompass its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the owners but persons who are deemed to be tenants also. The point in controversy is whether a person claiming the status of a deemed tenant must have been cultivating l with the consent or under the authority of the owner. The point in controversy is whether a person claiming the status of a deemed tenant must have been cultivating l with the consent or under the authority of the owner. Counsel for the appellants submits that tenancy postulates a relation based on contract between the owner of land, the person in occupation of the land, there can be no tenancy without the consent or authority of the owner to the occupants of that land. But the Act has by section 2(18) devised a special definition of tenant included therein persons who are not contractual tenants. It would therefore be difficult to assume in construing section 4 that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant condition imposed by the statute is only that the person claiming the status of a deemed tenant must be cultivating land "lawfully". It is not the condition that he must cultivate land with the consent of or under authority derived directly from the owner. To import such a condition is to rewrite the section destroy its practical utility. A person who derives his right to cultivate land from the owners would normally be a contractual tenant he will obviously not be a "deemed tenant". Persons such as licensees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others, but it cannot be assumed therefrom that they are the only persons who are covered by the section. The Act affords protection to all persons who hold agricultural lands as contractual tenants subject to the exceptions specified all persons lawfully cultivating lands belonging to others, and it would be unduly restricting the intention of the Legislature to limit the benefit of its provisions to persons who derive their authority from the owner, either under a contract or tenancy, or otherwise. In our view, all persons other than those mentioned in cls. In our view, all persons other than those mentioned in cls. (a), (b) and (c) of section 4 who lawfully cultivate land belonging to other persons whether or not their authority is derived directly from the owner of the land must be deemed tenants of the lands." (Underlining is mine) The Apex Court has referred to the provisions of section 4 of the B.T. A.L. Act which recognises a person lawfully cultivating any land belonging to another person as a deemed tenant, if i) he is not a member of the owners family, ii) not a servant on wages .. iii) not a mortgagee in possession. The Apex Court also referred to the provisions of the Transfer of Property Act and pointed out in Paragraph No. 7 that under the said provisions, the tenant who has been inducted into possession by a mortgagee, his right comes to an end with the extinction of the mortgagee by redemption, but that rule in the judgment of Their Lordships has no application in the interpretation of a statute which has been enacted with the object of granting protection to persons lawfully cultivating agricultural lands. The contention that mortgagee in possession includes a tenant from such mortgagee was negatived by the Apex Court it was pointed out that a mortgagee in possession is excluded from the class of deemed tenants on the ground of public policy therefore, to confer that status upon a mortgagee in possession would be to invest him with rights inconsistent with his fiduciary character. 22.While distinguishing the case of a tenant inducted on urban property from that of a tenant of agricultural land, the Apex Court has discussed the law at length in various judgments. It would be sufficient for our purpose to refer to A.I.R. 1989 S.C. 436 (Pomal Kanji Govindji and others v. Vrajlal Karsandas Purohit and others)2, whereby a group of appeals was disposed of by the Apex Court. All these matters pertained to urban property and the Court has pointed out that the principle exception afforded to section 76(a) of the Transfer of Property Act, applies ordinarily to the management of agricultural lands, but not to the case of an urban property. The discussion at length is found on page 452 in paragraphs No. 40 and 41 of the judgment. The discussion at length is found on page 452 in paragraphs No. 40 and 41 of the judgment. The Apex Court also referred to the earlier judgment in A.I.R. 1964 S.C. 1320 (supra) as well A.I.R. 1958 S.C. 183 (Asa Ram v. Mst. Ram Kali)3, and a similar judgment in A.I.R. 1966 S.C. 1721 (Prabhu v. Ramdeo)4, and pointed out that the decisions in respect of tenants of agricultural land inducted by the mortgagee would not be applicable to the case of tenants inducted on urban property by mortgagee in possession. Referring to a decision of the Gujarat High Court reported in A.I.R. 1976 Gujarat 161 (Lalji Purushottam v. Thacker Madhavji)5, the Apex Court quoted with approval the observations of the learned Chief Justice (stated below) :-- "In our opinion, on the general aspect of the matter, based on facts of which judicial notice can be taken, it is clear that so far as leases of agricultural lands are concerned, when a lessee cultivates land by the very process of cultivation he brings inputs and improves the fertility of the soil. Constant and continuous cultivation by proper manuring etc. would improve the fertility of the soil and on the determination of the lease, that fertility would still remain in the land. It is, therefore, necessary that security of tenure should be given to the tenant of agricultural land so that by his proper husbandry and agricultural practices, he himself may derive good benefits from the land and also improve the fertility of the soil. It is because of this aspect that in all countries legislation has been enacted to protect the actual tiller of the soil, fixity of tenure has been given and all the different measures of tenancy legislation regarding agricultural lands have provided for sufficiently long leases and protection of his tenure so as to induce the agriculturist to put in his best efforts and best inputs and they are called now-a-days, during the term of the lease. A prudent owner of property would, therefore, see to it that the term of lease which he grants in respect of agricultural land is sufficiently long to induce the tenant to put in the best efforts which would incidentally benefit the owner of the land by improving the fertility of the land itself. A prudent owner of property would, therefore, see to it that the term of lease which he grants in respect of agricultural land is sufficiently long to induce the tenant to put in the best efforts which would incidentally benefit the owner of the land by improving the fertility of the land itself. In contrast to the agricultural lands, so far as non-agricultural and urban lands are concerned, on determination of the lease the tenant who has been on the property under the terms of the lease is bound to put back the property in the condition in which it was at the time when he entered into possession and nothing is normally done by the tenant which is likely to improve the quality of the soil property by his own efforts put in during the terms of the tenancy. There is, therefore, no question of a prudent owner of urban immovable property granting a long term lease merely with a view to improve the quality of the land. Barring Rent Control and Rent Restriction Acts, which deal with urban immovable property, in area where there is scarcity of accommodation both for residential and non-residential purposes, there is no concept of protection to tenant to urban immovable property. We are of opinion that this is the rationale behind the distinction which the Supreme Court has pointed out between leases of agricultural lands and leases if urban immovable property while dealing with the provisions of section 76(a) of the Transfer of Property Act, whereas a prudent owner would not ordinarily speaking think of creating a long term lease purely as a matter of prudent management, an owner of agricultural land in the course of prudent management would create a long term lease purely from the aspect of prudent management. In our opinion, therefore, the word "seldom" used by Hidayatullah, C.J., in (All India Film Corporation's)6, case 1969(3) S.C.C. 79 (supra) while dealing with the application of the exception carved out by section 76(a) to urban immovable property has to be read as not being extended at all and it is merely a term of the phrase to say that this exception has seldom been extended to urban immovable property." The learned District Judge as well as the learned Members of the Revenue Tribunal have, in fact, applied the law which governs the urban properties and which is inapplicable to the agricultural land and this has resulted in a wrongful exercise of jurisdiction vested in them by law. The Maharashtra Revenue Tribunal in fact, misdirected itself by referring to provisions of section 25-A of the B.T. AL Act. It is observed in paragraph No. 8 that the provisions of the Tenancy Act could not be applicable to other types of lease which are covered by the provisions of the Transfer of Property Act. There must be independent legal right and the creation of legal relationship as landlord and tenant between the landlord and other person. The tribunal then went on to observe that as per section 25-A of the Tenancy Act, the tenancy is to be held in abeyance during the usufructuary mortgatge in favour of the tenant. This was not a case of mortgage in favour of a tenant at all. The mortgagee was a different person and the tenant was claiming to have been inducted in the land by the mortgagee. The further observation of the Tribunal that this was not a case of usufructuary mortgage but of a mortgage of conditional sale was totally uncalled for and inapplicable in the facts and circumstances of the case. The Tribunal which is considered to have specialized itself in the revenue laws did not consider that the tenant inducted on agricultural land by a mortgagee remains a person lawfully cultivating the land and if he is not covered by the exceptions mentioned in section 4 of the B.T. A.L.. Act, he would be deemed to be a tenant. In case of a deemed tenant the question of considering the provisions of the contract of tenancy do not arise because a person claiming to be a contractual tenant, cannot in any case, become a deemed tenant. Act, he would be deemed to be a tenant. In case of a deemed tenant the question of considering the provisions of the contract of tenancy do not arise because a person claiming to be a contractual tenant, cannot in any case, become a deemed tenant. The deeming provisions is intended to confer the right of tenancy on a person who is, in fact, not otherwise a tenant but by fiction of law, gets rights of tenancy in view of the fact that he was lawfully cultivating the land as discussed in detail by the Apex Court. The tenant inducted by a mortgagee in possession during the subsistance of mortgage though a contractual tenant vis-a-vis the mortgagee becomes a deemed tenant on redemption of his equity of redemption by the mortgagor vis-a-vis the mortgagor. The above stated legal position in respect of house tenancies has been further affirmed by the Apex Court in A.I.R. 1989 S.C. 1110 (Carona Shoe Co. Ltd. another v. K.C. Bhaskaran Nair)7, wherein again the distinction between the tenants inducted on agricultural land by mortgagee and the tenants inducted on the urban property was further pointed out and the law laid down in the earlier decisions in respect of agricultural lands was upheld. 23.The Executing Court as well as the learned District Judge have laid much stress on the technicality, because the obstructionist had not filed any application but had only filed a written statement or additional written statement. In fact, the Court should have looked into the substance of the matter and not the form. 23.The Executing Court as well as the learned District Judge have laid much stress on the technicality, because the obstructionist had not filed any application but had only filed a written statement or additional written statement. In fact, the Court should have looked into the substance of the matter and not the form. In 1996(5) Bom.C.R. 425 (Ubaldino Oliveira v. Sadanand Ladu Borkar)8, a learned Single Judge of this Court has pointed out that a person in possession of the property in his own right not bound by decree can resist execution and even if he files application under Order 21, Rule 97 of the C.P.C. which is normally filed by the decree holder, the Court should find out what is the substance and the application cannot be rejected on mere technical ground of inapplicability of Order 21, Rule 97 of the C.P.C. while making the following observation :- "Where the petitioner who was in possession of the property was resisting the execution of a decree, that too, a consent decree, to which he was not a party asserting that he was in possession of the property on an independent right, of his own, his right to resist the execution of the decree cannot be rejected on a mere technical ground that an application at the instance of an obstructor under Order 21, Rule 97 is not maintainable. Even under section 151 of the Civil Procedure Code the Court can entertain such application and examine the case on merits and pass appropriate orders in consonance with the principles of natural justice. (Order set aside and the executing Court directed, to entertain the application of the applicant and dispose it of on merits." 24.Similar view is taken by the Apex Court in 1995(1) S.C.C. 6 (Bhanwar Lal v. Satyanarayan and another)9. The Apex Court pointed out in paragraph No. 2 that the crux of the question is whether the application filed on 25-5-1979 by the appellant, though purported to be under Order 21, Rule 35(3) against Satyanarain, is convertible to one under Order 21, Rule 97, thereby emphasizing the fact that what the Court has to see is the substance and not the form. In the present case, the petitioner was shown as an obstructionist. The decree holder did not file any obstructionist notice and did not take out any obstructionist proceeding against him. In the present case, the petitioner was shown as an obstructionist. The decree holder did not file any obstructionist notice and did not take out any obstructionist proceeding against him. When he was noticed in the execution proceedings, he filed his objection and an additional written statement at Exh. 50. This should have been considered as an objection to the execution of decree by a person who was independently claiming to be in possession in his own right protected by statutory provisions of B.T. A.L. Act. The Executing Court as well as the Appellate Court have not considered the said objection Exh. 50 from the above stated point of view and have wrongly held that he was bound by the decree and the same could be executed against him. The Revenue Tribunal having applied the law which was applicable to urban property to the agricultural land and having failed to take into consideration the provisions of section 4 in respect of deemed tenant, which is a special category recognised by the said Act, has also fallen into error. The learned members of the Maharashtra Revenue Tribunal as well as the learned District Judge also did not consider the fact that Chavdas was inducted as a tenant by he mortgagee prior to the coming into force of the B.T. A.L., Act and his rights were enlarged by the introduction of the said Act and by virtue of section 4 he being in lawful cultivation of the land was required to be considered as a deemed tenant and was entitled to the protection of Tenancy Act. In fact, as pointed out earlier, the reversal of the finding that Chavdas was a tenant by the Maharashtra Revenue Tribunal, has resulted in a very curious situation where the certificate under section 88-C issued in favour of respondent and against the petitioner had become final and still the finding of Maharashtra Revenue Tribunal, that he was not a tenant remains. For all these reasons, I am fully convinced that the Revision Application as well as writ petition will have to be allowed. Writ Petition No. 184 of 1992 is allowed. The judgment and order passed by the Maharashtra Revenue Tribunal in Revision Application No. Tenancy A. 166/85 on 30-10-1991 is hereby quashed. For all these reasons, I am fully convinced that the Revision Application as well as writ petition will have to be allowed. Writ Petition No. 184 of 1992 is allowed. The judgment and order passed by the Maharashtra Revenue Tribunal in Revision Application No. Tenancy A. 166/85 on 30-10-1991 is hereby quashed. The order of Tahsildar, Edlabad in Tenancy Case No. 11/1978 upheld in Appeal No. 26/1980 by the Sub-Divisional Officer, Jalgaon is hereby confirmed and the petitioners are held to be tenants of the suit land. Rules is made absolute. Respondent Papilabai shall pay costs of the petition to the petitioners and shall bear her own costs. Office to issue the writ forthwith. Revision Application No. 329 of 1995 is allowed. The order passed in Regular Darkhast No. 86 of 1989 by the Civil Judge, Junior Division, Edlabad, District Jalgaon issuing warrant of possession and the order passed by the 4th Additional District Judge, Jalgaon in Regular Civil Appeal No. 87 of 1992, are set aside and the Exh. 50 is treated as an application filed by Chavdas, raising objection to the execution of decree. The objection is sustained and it is held that the decree passed in Regular Civil Suit No. 127 of 1977 is not binding and is, therefore, not executable against the petitioners (heirs of deceased Chavdas) and as such the execution petition i.e. Regular Darkhast No. 86 of 1989, is dismissed and the executing Court is directed not to entertain any further petition for execution of the said decree against the present petitioners. The respondent shall pay costs of the Revision Application throughout to the petitioner and shall bear her own costs. In view of the above, the order passed restraining both the parties from entering into the land by this Court being an interim arrangement is re-called. The respondent in breach of the order not only entered into possession but filed an application for entering her name as person in possession to the revenue authorities. She is directed to hand over possession of the disputed portion which she has taken in possession after the aforesaid order of this Court, preventing both the parties from entering the land within a period of 15 days from the date on which writ of this order is received by the Trial Court, failing which further action would be taken against her in Civil Application No. 339 of 1998. In case the respondent hands over possession of the portion which she has usurped after the prohibitory order of this Court, the question of taking or not any action against her for the said act of violating the order of this Court shall be considered by this Court. The said civil application be placed on Board after four weeks on which date the respondent's Advocate shall report about compliance of the order. Office to send the writ forthwith. Order accordingly. *****