According 10 him a mortgagee in possession being a person who cannot be deemed to be a tenant under section 4 of the BT & AL Act it was not open to the defendants to claim that they were the tenants of suit properties and if that be so question of raising issue of tenancy by the Civil Court in the suit before it did not arise at all nor was it necessary to refer such issue to the Mamlatdar under section 85-A of the BT & AL Act and stay the suit till receipt of the finding on such issue as was directed by the High Court in its judgment under appeal