1. This is a revisional application which raises a short question under Section 64; Bombay Tenancy and Agricultural Lands Act (Act 67 of 1948), The property in dispute consists of five agricultural pieces of land. They had been mortgaged with the petitioner with possession. In 1951 the mortgagor sold the equity of redemption to the mortgage In the present proceedings, which arise under Order 21, Rule 58, the petitioner claimed that he was in possession of the property as owner and so the property was not liable to be proceeded against as belonging to his mortgagor. The defence was that the sale in favour of the petitioner was invalid under Section 64 of the Tenancy Act. This plea has been accepted by the learned trial Judge, with the result that the application made by the petitioner under Order 21. Rule 58, has been rejected.
2. Mr. Karlekar for the petitioner contends that, in applying Section 64 to the sale in favour of the petitioner, the learned Judge has failed to consider the fact that the sale of agricultural land which is hit by Section 64 must be a sale of agricultural land by a landlord; and, according to Mr. Karlekar, the sale of the equity of redemption in favour of the petitioner cannot be described as a sale by a landlord. This argument is based upon the definition of the word 'Tenant' as contained in Section 2, Sub-section (18). Section 2, Sub-section (18) defines a 'tenant' as meaning 'an agriculturist who holds land on lease' and includes a person who is deemed to be tenant under the provisions of this Act.' The definition then adds: 'The word 'landlord' shall be construed accordingly'. Section 4 Sub-clause (c) makes it clear that a mortgagee in possession cannot be deemed to be a tenant under this Act. I may add that under the corresponding provisions of the earlier Tenancy Act a mortgagee in possession could have been regarded as a tenant. The position then is that the petitioner, who is a mortgagee in possession of agricultural lands, is not a tenant within the definition of Section 2 Sub-section (18) and cannot also be deemed to be a tenant under Section 4; and if the person in possession of the lands cannot be deemed to be a tenant, the mortgagor cannot claim to be a landlord in respect of the lands.
3. Mr. Karlekar has also invited my attention to the fact that in Section 2 Sub-section (21) of the Tenancy Act it has been provided that if words and expressions used in the Act are not defined in the Act, their definitions in the Bombay Land Revenue Code may be taken into consideration; and the definition of the word 'landlord' in Section 3 Sub-section (15), land Revenue Code provides that 'landlord' means a lessor. It is, therefore, clear that a mortgagor cannot be said to be a landlord even within, the definition contained in Section 3, Sub-section (15), Land-Revenue Code.
4. Now, Section 64 of the Tenancy Act in terms provides that, where a landlord intends to sell any land, he shall apply to the Tribunal for determining its reasonable price. It is, therefore, clear that, before Section 64 can be invoked, it must be shown that the intended sale is going to be completed by a landlord. In other words, the owner should be able to describe himself as a landlord in respect of the land which he intends to sell. In the present case, it would be impossible to describe the mortgagor as the landlord of the lands in question. Therefore, Section 64 Sub-section (1) would be inapplicable. Mr. Sheth, however, argues that the priority mentioned in Section 64 shows that the claims of several persons have to be considered in allowing permission to the landlord to sell the property and Mr. Sheth's argument is that it is not necessary that the property should be in the possession and cultivation of the tenant. I am not impressed by this argument. In the list of priorities, the tenant in actual possession of the land is given a place of pride, which means that the first option must be given to the tenant in possession of the land. That again postulates that the land must, be in the possession of a tenant who is cultivating it. In the present case, the land is in the possession of the mortgagee who cannot be regarded as a ten-ant.
5. I am, therefore, satisfied that the learned Judge below was in error in holding that the provisions of Section 64 apply to the sale of the equity of redemption in favour of the petitioner.
6. That, however, need not be the end of the present proceedings. Mr. Sheth contends that the sale in favour, of the petitioner is hit by the pro-visions of Section 63, Sub-section (1) of the Tenancy Act as well as Section 40, B.A.D.R. Act. These points, however, have not been considered by the learned trial Judge and they are points which cannot be dealt with merely as points of law without ascertaining the relevant facts. I would, therefore, set aside the order passed by the learned trial Judge and send the proceedings back to him with a direction that he should consider whether the transaction !s hit by the provisions of Section 63 of the Tenancy Act as well as Section 40, B.A.D.R. Act. Mr. Sheth tells me that the transaction in favour of the petitioner has been attacked by his client in the lower Court also on other grounds. The learned trial Judge will have to deal with these grounds as well.
7. The revisional application accordingly succeeds, the rule is made absolute and the matter is sent back to the trial Court for disposal in accordance with law. The costs of this revisional application will be costs in the proceedings before the learned trial Judge.
8. Case remanded.