JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Trilok J. Patel, learned advocate for the petitioners, and Mr. Manoj Shrimali, learned advocate for the respondents. 2. The petitioners are aggrieved by order dated 29.7.2004 passed by learned revenue tribunal in revision application No. 344 of 1994. 3. So far as factual background involved in present petition is concerned, it has emerged from the record and from the submissions by learned advocates for the contesting parties that one Smt. Bai Ugari Manilal wife of Manilal Baldevbhai was owner of certain agriculture land. It is claimed that said Bai Ugari mortgaged the land bearing revenue survey No. 4228 to Shri Haribhai Ambalal Raval and Shri Kantibhai Ambalal Raval. The deed of mortgage was executed on 8.4.1924 and the said deed was registered as well. It is further claimed that said transaction/mortgage is registered in revenue record and entry No. 2857 is mutated. It is also claimed that said entry was subsequently verified and came to be certified by the competent authority. 3.1 The petitioners have further claimed that the father of the petitioners was inducted as tenant by said Shri Haribhai Ambalal Raval and Shri Kantibhai Ambalal Raval, i.e. the mortgagee in possession of the suit land. The petitioners have claimed that their father cultivated the land as a tenant of the mortgagee and the petitioners' father remained in possession of the said land and also continued to cultivate the said land. 3.2 It is further claimed that somewhere in 1990, some proceedings under Section 32(O) of the Bombay Tenancy & Agriculture Lands Act were instituted by Mamlatdar and case was registered as tenancy case No. 32-O-736-90. It appears that Shri Kantibhai Ambalal Raval was party respondent in the said proceedings under Section 32(O) of the Act. While the proceedings before the Mamlatdar was pending, one Shri Pravinbhai Bhikhabhai Raval submitted application before the Mamlatdar with the demand that he should be impleaded as party to the proceedings as he has interest in the land in question. The said application submitted by Shri Pravinbhai Bhikhabhai Raval was rejected by the Mamlatdar. 3.3 At this stage, it is relevant to note that when the Mamlatdar rejected the application filed by above named Shri Pravinbhai Bhikhabhai Raval, said Shri Pravinbhai Bhikhabhai Raval did not challenge the order passed by the Mamlatdar. Therefore, the said order and decision by Mamlatdar attained finality. 3.3 At this stage, it is relevant to note that when the Mamlatdar rejected the application filed by above named Shri Pravinbhai Bhikhabhai Raval, said Shri Pravinbhai Bhikhabhai Raval did not challenge the order passed by the Mamlatdar. Therefore, the said order and decision by Mamlatdar attained finality. 3.4 It appears that during the proceedings before the Mamlatdar, statements of various persons including present petitioner No. 1 and petitioner No. 3 were recorded and the said persons stated before the Mamlatdar that they are tenants of the land in question since long time and they have been cultivating the land and before they started cultivating the land, their father, as a tenant was cultivating the land. 3.5 When Shri Pravinbhai Bhikhabhai Raval submitted application before the Mamlatdar, he supported his application with a copy of pedigree of said Bai Ugari. 3.6 On strength of said pedigree (placed before the Mamlatdar by said Shri Pravinbhai Bhikhabhai Raval), it was claimed that Shri Pravinbhai Bhikhabhai Raval is not son of said Bai Ugari. It is claimed that the Mamlatdar rejected the application filed by said Shri Pravinbhai Bhikhabhai Raval after considering said pedigree. 3.7 The said tenancy case No. 736 of 1998 came to be decided by the Mamlatdar vide order dated 20.6.1991 whereby the Mamlatdar fixed the purchase price of the land in question. 3.8 According to the petitioners, the respondents before the Mamlatdar did not challenge the order dated 20.6.1991 passed by the Mamlatdar. However, the Dy. Collector, Mehsana exercised suo motu revisional jurisdiction and issued notice to all respondents. The notice issued by the Dy. Collector was adjudicated and after hearing the parties and after taking into account relevant evidence, Dy. Collector, Mehsana passed order dated 23.12.1993 and confirmed the order dated 20.6.1991 passed by the Mamlatdar. 3.9 At this stage, it is pertinent to note that said Bai Ugari or any heir/legal representative of said Bai Ugari had not challenged the order dated 20.6.1991 passed by the Mamlatdar before the Dy. Collector. 3.10 Despite the fact that present respondent No. 1/1 i.e. Shri Pravinbhai Bhikhabhai Raval was not party to the proceedings before the Mamlatdar and/or Dy. Collector and though he had no right in law in respect of the property in question, he preferred revision application before the learned tribunal which was registered as revision application No. 344 of 1994. Collector. 3.10 Despite the fact that present respondent No. 1/1 i.e. Shri Pravinbhai Bhikhabhai Raval was not party to the proceedings before the Mamlatdar and/or Dy. Collector and though he had no right in law in respect of the property in question, he preferred revision application before the learned tribunal which was registered as revision application No. 344 of 1994. 3.11 The respondent No. 1 herein i.e. above named Shri Pravinbhai Bhikhabhai Raval challenged the order dated 20.6.1991 passed by the Mamlatdar and the order dated 23.12.1993 passed by the Dy. Collector in his revision application No. 344 of 1994 before the learned tribunal. 3.12 It appears that the learned tribunal heard the parties and considered the material available on record and vide order dated 29.7.2004, learned tribunal allowed the revision application filed by present respondent No. 1/1, i.e. Shri Pravinbhai Bhikhabhai Raval. 3.13 Feeling aggrieved by the order dated 29.7.2004 passed by learned tribunal, the petitioners have taken out present petition. 4. Mr. Patel, learned advocate for the petitioners, assailed the impugned order and reiterated below mentioned contentions which are stated in the petition:- "11. The Tribunal has erred in allowing the revision application as the original owner Bai Ugari has mortgaged the suit land bearing Survey No. 4228 admeasuring 0 Acre and 27 gunthas along with other lands in the sim of village Ladol, Taluka: Vijapur, Dist.: Mehsana on 8.4.1924 and the deceased Kuberbhai i.e. father of the present petitioners have the said land as a tenant from the mortgagee in possession and in view of the judgment of the Supreme Court in the case of Dahyalal and others Vs. Rasul Mohamad Abdul Rahim and others reported in AIR 1964 SCC p. 1320, the petitioners become the tenants of the mortgagee and petitioners will be entitled to become the tenants of the mortgager after redemption of the mortgage. 12. The Gujarat Revenue Tribunal has also erred apparent on the face of the case in allowing the revision application as the Tribunal has held that Mamlatdar and ALT has not verified certain documentary evidence and has not concluded the correct and proper inquiry and inquiry conducted by the Mamlatdar appears to be perfunctory and the Tribunal has also erred in holding that the Deputy Collector's order confirming the order of the Mamlatdar appears to be perfunctory and without application of mind to the important issues od deemed tenancy. (b) The petitioners submit that in the present case, Bai Ugri has mortgaged the suit land bearing Survey No. 4228 admeasuring 0 Acre and 27 gunthas along with other lands by registered documents dated 8.4.1924 in favour of Haribhai Ambalal Raval and Kantilal Ambalal Raval and remaining half portion of the land was further mortgaged by registered document of 1933 as stated in Civil Suit No. 34 of 1990. Not only that the respondent No. 1 also filed Regular Civil Suit No. 34 of 1990 for redemption of the suit land bearing Survey No. 4228 along with other two survey numbers before the learned Civil Judge (JD), Visnagar. In the said suit, the petitioners filed their written submissions at Exh. 24 (Annexure - C), in which the petitioners have contended that deceased Kuberbhai was a tenant of the suit land. It was further case of the petitioners that he was tenant before the mortgage was created. Thus, the petitioners were tenants of the mortgager earlier and also of the mortgagee and in the event of redemption, they will become the tenants of the mortgager. The petitioners submitted that before the Mamlatdar the petitioners have been examined and they have stated that they are the tenants of the land since their father and they are cultivating the land and their names were also in the revenue record and in view of that the Mamlatdar has fixed the purchase price of the land and therefore, the order of the Mamlatdar and ALT is quite legal and proper. (c) In view of the judgment reported in AIR 1964 SC p. 1320, the Hon'ble Supreme Court has held that all persons other than those mentioned in cls. (a) (b) and (c) of S. 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. A tenant inducted on the land by the mortgagee in possession is such a tenant. Such tenant is protected and cannot be evicted upon redemption. Mortgagee in possession is not a deemed tenant. A tenant inducted on the land by the mortgagee in possession is such a tenant. Such tenant is protected and cannot be evicted upon redemption. Mortgagee in possession is not a deemed tenant. The petitioners submit that they have also cited this judgment of the Supreme Court before the Gujarat Revenue Tribunal but the learned Member of the Tribunal has not properly appreciated the same and said that this binding judgment is not applicable in the present case and therefore, the impugned judgment and order dated 29th July, 2004 is required to be quashed and set aside. (d) The petitioners submit that in the present case the respondent No. 1 has no right to prefer revision application under Section 76 of the Tenancy Act because, the respondent No. 1 has accepted the order of the Mamlatdar and ALT dated 26.6.1991, whereby, it is held that the petitioners are the tenants of the land and purchase price of the land was fixed by the Mamlatdar. Against that order, the respondent No. 1 has not filed any appeal under Section 74 of the Tenancy Act. Therefore, the said judgment of the Mamlatdar and ALT become final and binding to all the parties. The petitioners further submit that as the respondent No. 1 has not challenged the said order of the Mamlatdar and ALT but the Deputy Collector has by his revision power has initiated proceedings and said order of the Mamlatdar and ALT was confirmed and therefore, the respondent No. 1 has no right to challenge the order of the Deputy Collector. This contention was raised before the Tribunal but the Tribunal has not considered the same and therefore, the impugned order dated 29th July, 2004 is required to be quashed and set aside." 5. Mr. Shrimali, learned advocate for the respondent No. 1/1 opposed the petition and submitted that the learned tribunal has not committed any error in the impugned decision. He submitted that the learned tribunal has recorded finding that the opponent No. 1 (before the learned tribunal) i.e. petitioners were cultivating the land but not as tenant and the opponents failed to show any evidence to support their claim that they were cultivating the land as tenant. Mr. He submitted that the learned tribunal has recorded finding that the opponent No. 1 (before the learned tribunal) i.e. petitioners were cultivating the land but not as tenant and the opponents failed to show any evidence to support their claim that they were cultivating the land as tenant. Mr. Shrimali, learned advocate for the respondent No. 1/1 emphasized the observations by the learned tribunal in paragraph No. 5 of the impugned decision and submitted that the said findings recorded by the learned Tribunal are correct and justified and they do not warrant any interference and therefore, the petition may be rejected. 6. I have considered rival submissions by the learned advocates for the petitioners and respondent No. 1/1. 7. It has emerged from the record that certain facts are not in dispute. 7.1 It is not in dispute that the original land in question was owned by said Bai Ugari. It is also not in dispute that the said Bai Ugari had mortgaged the land in question with Shri Haribhai Ambalal Raval and Shri Kantibhai Ambalal Raval and registered mortgage deed was executed between the said parties. It is also not in dispute that the said transaction was registered in revenue record as mutation entry No. 2857. It is also not in dispute that the mortgagee were in possession of the land in question. It is also not in dispute that the petitioners' father was cultivating the land in question and he was inducted by the mortgagee. 7.2 However, from the observations by the learned tribunal, it appears that there is dispute as to whether the mortgagee had inducted father of the petitioner as tenant after 1.4.1957. Learned tribunal also seems to have proceeded on the premise that any inquiry was not initiated/conducted on the basis of application for declaration of tenancy. 7.3 It is pertinent to note that learned tribunal has observed in the order that Mamlatdar had not verified the record and proceedings of case No. 1170 referred to in the entry No. 8745 and/or the record and proceedings of case No. 197/32 paiki or village form No. 6. 7.4 Of course, the said observation by learned Tribunal are vehemently opposed by Mr. Patel, learned advocate, who contended that the said material was available on record before the Mamlatdar and also before the Dy. Collector, however, learned tribunal failed to take into account the said material/documents. 7.4 Of course, the said observation by learned Tribunal are vehemently opposed by Mr. Patel, learned advocate, who contended that the said material was available on record before the Mamlatdar and also before the Dy. Collector, however, learned tribunal failed to take into account the said material/documents. He also emphasized that father of the petitioners was inducted as tenant long time before 1.4.1957. He submitted that actually, the mortgage was executed in 1924 and within short time, after the mortgage was executed, petitioners' father was inducted as tenant and that therefore, the observation by the learned Tribunal is incorrect and contrary to record. 8. In present case, it is not necessary for this Court to enter into the said controversy at this stage and/or to examine the record or to re-appreciate the evidence with regard to the disputed aspects mentioned by learned tribunal because two issues which have arisen in present petition in respect of impugned order are such that the petition can be disposed of by considering said two aspects and without entering into other controversy and dispute. 8.1 One issue out of said two issues is that when learned tribunal observed in the order that certain relevant material was not available on record before the Mamlatdar and/or that the relevant details and material were not examined by Mamlatdar, learned Tribunal ought to have remanded the proceedings before the concerned authority, more particularly because the learned tribunal itself did not independently examine such material and did not reach to independent conclusion after examining the relevant record. On one hand, learned tribunal observed that the Mamlatdar did not examine the material and on the other hand, the learned tribunal, after pointing out such error, itself also did not examine the material and did not, independently, reach to any particular findings and conclusions. The said error in the order vitiates impugned decision and the matter deserves re-consideration by the learned tribunal. For the said purpose, the case is required to be remitted to the learned tribunal. 8.2 Another issue is more vital, relevant and goes to the root of the matter. The said error in the order vitiates impugned decision and the matter deserves re-consideration by the learned tribunal. For the said purpose, the case is required to be remitted to the learned tribunal. 8.2 Another issue is more vital, relevant and goes to the root of the matter. On this count, it is necessary to recall that present respondent No. 1/1 i.e. the revisionist/appellant before the learned tribunal in revision application No. 344 of 1994 (wherein the impugned order is passed by the learned tribunal) had submitted an application before the Mamlatdar on the ground that he is interested in land in question and therefore, he should be heard by the Mamlatdar and he should be impleaded in the proceedings. The said application was rejected by the Mamlatdar. It is pertinent that the respondent No. 1 herein i.e. revisionist before the learned tribunal accepted the said decision by Mamlatdar and he never challenged the decision by Mamlatdar whereby the Mamlatdar rejected his application. 8.3 Not only this, when the Mamlatdar adjudicated the notice and passed the order/final decision dated 20.6.1991 in tenancy case No. 746 of 1990, said Bai Ugari and/or present respondent No. 1 did not challenge the said order dated 20.6.1991 passed by Mamlatdar. Actually, any party to the proceedings before the Mamlatdar including Bai Ugari never challenged the order dated 20.6.1991 passed by Mamlatdar in tenancy case No. 736 of 1999. 8.4 In this view of the matter, present respondent No. 1 i.e. the revisionist before the learned Tribunal had no locus or authority or justification to challenge the order of Mamlatdar and/or the order of Dy. Collector before the learned Tribunal when he was not party to the proceedings before the Mamlatdar and/or Dy. Collector, more particularly when he never challenged the order passed by the Mamlatdar whereby the Mamlatdar rejected his application for joining the proceedings of tenancy case No. 736 of 1990. 9. It is pertinent to note that said objection by the petitioner is not at all considered and dealt with by learned Tribunal. When the opponent before the learned Tribunal i.e. present petitioner raised serious objection with regard to locus of the petitioner to file revision/appeal before the learned Tribunal, learned Tribunal ought to have considered and decided the said issue in accordance with law. When the opponent before the learned Tribunal i.e. present petitioner raised serious objection with regard to locus of the petitioner to file revision/appeal before the learned Tribunal, learned Tribunal ought to have considered and decided the said issue in accordance with law. 9.1 It is pertinent to note that the pedigree of above mentioned Bai Ugari was available on record. From the said document, learned Tribunal ought to have examined and determined relevant facts. 9.2 Learned Tribunal proceeded to decide the revision application/appeal No. 344 of 1994 without addressing and deciding relevant issues including the objection against the locus of the revisionist to prefer revision application. 10. The impugned order passed by the learned Tribunal, therefore, suffers from above mentioned inherent defects and, therefore, cannot be sustained. The learned tribunal should reconsider the case after addressing the objections and contentions raised by the petitioner. For the said purpose, the impugned order is required to be set aside and the case is required to be remanded to the learned Tribunal. 11. Therefore, following order is passed: (a) In light of foregoing discussion and for the reasons mentioned above, impugned order dated 29.07.2004 passed by learned tribunal is set aside. (b) The revision application No. TEN. B.A. 344 of 1994 is remanded to learned tribunal. (c) Learned tribunal shall consider and decide the objection raised by the petitioners. Learned tribunal shall reconsider the case after hearing the parties and pass fresh order on merits after granting opportunity of hearing to both sides and after dealing with preliminary objections against maintainability of the revision application as well as locus of revisionist/appellant. (d) It is clarified that this Court has not entered into examination of the contentions by the petitioners against the findings recorded by the learned tribunal and this Court has not expressed any view on merits in respect of the findings by learned tribunal. (e) The impugned order is set aside on above mentioned limited grounds. Therefore, the contentions of both sides are kept open and it is clarified that it will be open to both sides to raise all such contentions as may be available in law and the learned tribunal shall pass fresh reasoned and speaking order after dealing with all contentions raised by both sides and without being influenced by the order dated 29.07.2004. (f) Having regard to the fact that the case is very old, the learned tribunal will endeavour to decide the revision application/appeal as expeditiously as possible and preferably within four weeks. With aforesaid clarification and direction, the petition is partly allowed. Rule is made absolute to the aforesaid extent. Petition Partly Allowed