1. This is a petition under S.108 (2) of Act 35 of 1969 to reopen the decree passed in the second appeal. The second appeal was disposed of and a decree for redemption and recovery of possession was passed on 29th May, 1968 on holding that the transaction sued on, namely Ext. Al dated 2 41944, is only a possessory mortgage. On review that decree was directed to be treated as a preliminary decree only and a final decree was directed to be passed after fixing the redemption price and mesne profits. Then the plaintiff applied in the trial court for passing a final decree and when that was pending Act 35 of 1969 came into force. The petitioner herein filed an application in the trial court to reopen the decree as he claimed to be a tenant having fixity of tenure as per the new provisions added to Act 1 of, 1964 by Act 35 of 1969. The trial court was of the view that such an application is maintainable, only before the court which passed the decree, namely this Court, and hence dismissed the application. The present petition is filed by the petitioner after that. He claims to be a tenant under one or more of four provisions in the Act. He claims to be a kanorndar under S.2(22)(b) of Act 1 of 1964. Again, he claims to be a deemed tenant under S.4A, 6A and 6B of the amended Act. If he is found to be a tenant under any one of these provisions, the decree has to be reopened and he must be held to be entitled to fixity of tenure. According to the plaintiff-respondent, none of the above provisions of the Act applies to the facts of this case. To appreciate the rival contentions it is necessary to state some more facts.

2. Plaint schedule properties belonged in jenm to the tarwad of plaintiffs 2 to 4. A possessory mortgage, Ext. A6 dated 10 51918, was granted from the tarwad in favour of the uncle and karanavan of the petitioner. Ext. A6 was for Rs. 1,800/- and it comprised other items of properties as well. There was a partition in the mortgagee tarwad and in that the possessory mortgage right under Ext. A6 was also partitioned; the suit properties were allotted to the tavazhi of the petitioner for a mortgage amount of Rs. 1,350/-and a annual purapad of 106 paras of paddy. The jenmi tarwad thereafter executed a fresh mortgage for the above amount under Ext. Al to the petitioner. The 1st plaintiff on getting a melcharthu filed the suit for redemption impleading the jenmies also as co-plaintiffs 2 to 4. The petitioner contended that the transaction evidenced by Ext. Al is only a lease and that he is not liable to be evicted. His plea was accepted and the suit was dismissed by the trial court and confirmed in first appeal. But, on second appeal, this Court on a proper construction of Ext. Al held that it is only a possessory mortgage and so granted the decree referred to above.

3. In view of the finding of this Court that Ext. Al is only a mortgage, the first contention of the petitioner under S.2 (22) (b) must fall to the ground. Under that provision there must be a transfer of an interest for enjoyment and the incidents of transfer must have one or more of the three incidents referred to in that provision. This same plea was raised by the petitioner before this Court at the second appellate stage. This Court found that the transfer was not for enjoyment but only to secure the amount mentioned in the deed. There is no change in this provision of the Act by Act 35 of 1969. Similarly, the relief claimed under S.6A also must fail. The petitioner has no case that Ext. A6 is not a mortgage. Even in the affidavit in support of the present petition he claims Ext. A6 to be only a mortgage. S.6A requires the person in possession or his predecessor-in-interest to be a tenant on or after the 1st day of December, 1930, and such tenancy must have been terminated after that date and before the commencement of Act 35 of 1969. The facts in this case do not satisfy the conditions mentioned in the Section. Therefore, benefit under S.6A is also not available to the petitioner. The same must be the fate of the claim under S.6B. In Ext. Al no amount is mentioned as payable by way of customary dues. No amount is specified in the document as michavaram. There is no provision for renewal of the document after expiry of a specified period. The absence of any one of these requirements in Ext. Al negatives the claim for benefit under S.6B.

5. The only remaining claim for benefit is under S.4A (1) of the Act. Under that sub-section a mortgagee with possession of land shall be deemed to be a tenant if the mortgagee was holding the land comprised in the holding for a continuous period of 50 years immediately preceding commencement of Act 35 of 1969. Explanation II to that sub-section provides that in computing the period of 50 years the period during which the predecessor-in-interest of the mortgagee was holding the property shall also be taken into account. In this case the original mortgage was of the year 1918 evidenced by Ext. A6. Ext. Al has been found to be only a renewal in the second appeal. So, if the other conditions of the sub-section are satisfied the petitioner can reckon the period from 1918 and will be a deemed tenant. But, the sub-section requires that the mortgagee must be "holding" the land comprised in the mortgage continuously for the required period. It is admitted by the petitioner that from 1103 to 1119 M. E. (corresponding to 1928 to 1944) these items were in the possession of a lessee. Item 2 was recovered from the lessee in 1944. The petitioner is now interested and claims relief only in respect of item 2. (Items 1 and 3 are in the hands of lessees and it is represented that relief in respect of items 1 and 3 is claimed by the persons in possession in other proceedings.) The respondents contend that the requirements of S.4A (1) (a) are not satisfied by the petitioner on account of the fact that the mortgagee was not in actual continuous possession for the required period and the possession of the lessee cannot be taken into account in reckoning the period during which the mortgagee must hold the land. The petitioner answers this contention by urging that lessees possession between 1928 and 1944 is in law his possession and as he was in possession on 111970 and continues in possession he satisfies The respondents have a contention that the petitioner was not in possession on 111970 and in support of that he has produced copies of records maintained by the Revenue Department for the purpose of the Foodgrains Control Order and the Levy Order showing the persons in possession of the property. In these records one Mohammed is stated to be the person cultivating the land from 1963 onwards. The petitioner disputes that and urges that no conclusion can be made on these revenue records only. In view of the conclusion that I have arrived at earlier, it is unnecessary to go into this question. Thus, he is not entitled to the benefit of any of the provisions of Act 1 of 1964 as amended by Act 35 of 1969 and therefore there are no grounds to reopen the decree passed by this Court in the second appeal.

4. In the result, dismiss the petition with costs. Dismissed.all the requirements of the. above provision. The question is whether this is a sufficient answer to the respondents objection.

6. A lease is a transfer of a right to enjoy the property for a certain time or in perpetuity. Along with the transfer there is an implied contract for exclusive possession. The tenant possesses the land in his own right though that possession is derivative in character. Possession is vested in him. For any disturbance of such possession he can bring an action not only against the strangers but also against his own landlord. Unlike a servant or an agent, when he sues a stranger he need not sue on behalf of the landlord. Again, though by the lease there is no transfer of an interest in immovable property during the period the tenancy continues the landlord has no right to possession. There is a contract with the tenant that the tenant may hold without interruption the property subject to certain conditions (see S.108 (c) of the TP. Act). The tenants interests in the property are transferable (see S.108 (j)) and heritable. S.108 (j) allows the tenant to transfer bis interests in the property either absolutely or by a mortgage. All these show that a tenant is in legal possession and the lessor is not and the statement of Sir William Markby that "the tendency of modern English lawyers is to treat a tenant as in legal possession of the land" is amply justified (see Markbys Elements of Law, para 389). Can this possession of the lessee be availed of by the mortgagee for a deemed tenancy No, for, the expression holding in S.4A (1) (a) means to have in ones possession, keeping or power the property. The definitionto hold in the Act also supports this idea. The principle of tacking of lessees possession with the lessors generally adopted to prove a case of adverse possession and limitation has no application in the context. Here locality of possession must remain the same except to the extent permitted by the sub-section. In this view, it cannot be held that the, mortgagee was holding the land for the period his lessee has been in possession.

7. There are sufficient indications in the sub-section itself to support this conclusion. The sub-section deals with the possession of a mortgagee and his lessee separately. In computing the required period of possession of the lessee the period during which the mortgagee was in possession is directed to be taken into account. In reckoning the period of the possession of the mortgagee the period of possession of his predecessor is directed to be taken into account. But, there is no direction to reckon the possession of the lessee as possession of the mortgagee. This is the case not only with clause (a) but clauses (b) and (c) of S.4A (1) as well. That shows the Legislature has not intended to reckon the period during which the mortgagees lessee was in possession as possession of the mortgagee. Almost all the provisions relating to deemed tenancy in the Act emphasise the aspect of actual possession only. Except to the extent specific provision is made to tack on the possession of one to the possession of another, the law requires actual possession to claim the benefit of a deemed tenant for a mortgagee as well. That seems to be the scope of the deeming provision and an extension of it by analogy to cases not expressed by the Act is not legally possible. In this case the petitioner who was admittedly not in possession during the period 1928 to 1944does not satisfy the requirement of clause (a) to S.4A (1) of the Act.