B. Venkataswami, J.
1. This appeal by the defendant in O. S. No. 167 of 1964 on the file of the Court of the Munsiff, Shora-pur, is directed against the judgment and decree of the Civil Judge at Gulbarga in R. A. No. 157 of 1965, whereby the suit of the respondent was decreed subject to certain conditions in modification of the decree of the trial Court.
2. The material facts are as follows: The appellant was a tenant of the respondent in the suit premises. They entered into an agreement of sale on 21-1-1954, under which the defendant-appellant agreed to purchase the suit house for a consideration of Rs. 4,000/- O. S. (Osmania currency). A sum of Rs. 2,150/- O. S. was paid by the appellant to the respondent on that day towards part payment of the consideration. The appellant was put in possession of the property by way of part-performance of the contract, evidenced by such agreement. According to the resondent, the appellant refused to complete the transaction in fulfilment of the obligations imposed by the agreement in question, in spite of demands by the respondent Hence the suit for possession. The plea on behalf of the defendant-appellant, in substance, is that the entire balance of consideration for such sale had been paid and discharged by certain adjustments made in the books of account in regard to the khatha of the father of the respondent and also on account of expenses incurred for repairs. Hence he counter-claimed that the respondent should be called upon the execute the sale deed in question.
The trial Court framed the following issues:
'1. Whether the defendant has paid the entire consideration amount as alleged bv him?
2. Whether the plaintiff is entitled to the possession of the house?
3. Whether the plaintiff is entitled to mesne profits? If so, how much?
4. Whether the suit is maintainable as framed?'
3. After trial on the above issues, it passed a decree in the following terms I
'The plaintiff shall be put in possession of the land bearing number 1-24-40 (old No. 19551 if the defendant fails to I
(i) pay the entire balance of consideration;
(ii) pay damages at the rate of Rs. 25/- per month from 16th of March, 1962 within sixty days from the date of the decree;
(iii) if the defendant Pays the balance of consideration as ordered then the plaintiffs shall execute a registered sale deed in favour of the defendant in respect of the house bearing No. 1-24-40 (old No. 1955) of Shorapur'.
4. Both the parties being aggrieved by the decree preferred an appeal and a cross appeal. The lower appellate Court made an Order to this effect:--
'In the result, both these appeals are partly allowed. The judgment and decree of the learned Munsiff are modified. There will be a decree in favour of the plaintiff against the defendant directing the defendant to put the plaintiff in possession of the property provided that the plaintiff pays back Rs. 2,150/- O. S. in equivalent K. G. Currency. The decree for damages is set aside. The defendant will be liable to pay mesne profits to the plaintiff only from the date on which the plaintiff deposits Rs. 2.150/-in Court, which will have to be inquired into separately under Order 20. Rule 12, Civil P. C.'
5. Against this judgment and decree the defendant has appealed.
6. On behalf of the appellant only one contention has been urged and the same, as set out in ground No. (2) of the memorandum of appeal reads thus:
'The decree for possession is clearly illegal as it was admitted by the plain-tiff that the defendant was a tenant on an annual rent of Rs. 200/- even before the agreement for purchase was executed. If the agreement goes the defendant would remain as a tenant'
7. The argument pressed in elaboration of that ground, on behalf of the appellant, may be stated thus: That unless the respondent is able to invoke the 'doctrine of merger', the earlier tenancy would be revived if the latter agreement of sale fails for one reason or other. Such merger could be invoked only in cases where an inferior right merges in a superior right in one and the same person. In the instant case, possession given by virtue of an agreement to sell is permissive only and, therefore! such a right cannot at all be presumed to be in any way superior to a tenancy right. Hence, there can be no merger. In this situation the right of tenancy will always be dormant and stands revived in the circumstances of this case. Therefore, the portion of the decree relative to possession cannot be sustained. Reliance was placed on some decided cases which will be adverted to presently.
8. On behalf of the respondent, Sri N. M. Jaghirdar, the learned Advocate, urged a two-fold contention, which is as follows:
(1) That the question Involved in the contention of the appellant is being urged for the first time in this second appeal, and such a question neither arises from the pleadings, nor from the arguments addressed before any of the Courts below. Hence this contention ought not to be permitted to be raised to the prejudice of the respondent.
(2) Even assuming that such a contention of the appellant is well founded in law, it cannot be upheld on the facts of the present case. It would be clear from the facts of the case that the appellant could only claim to be a statutory tenant, being entitled to the protection afforded by the Mysore Rent Control Act against eviction. Such a statutory tenant could not be said to be entitled to possession under a contract of tenancy. At best such a right to remain in possession is only a personal right. In such a situation he would not be entitled to fall back upon anv right which originated from the earlier contract of tenancy. In this context he relied on a decision of the Supreme Court in Anand Nivas Private Ltd v. Anandji Kalyanji's Pedhi, : 4SCR892 .
9. I am of the view that the first of the above contentions of Sri Jagirdar clearly deserves to be accepted and the appeal, therefore, has to fail.
10. Although it is evident from the record that the appellant was in fact a tenant in the suit premises prior to the agreement to sell, there has been absolutely no plea whatsoever as to rights flowing therefrom, on the part of the appellant. It is clear from the judgments of the Courts below that this question had not even been faintly hinted at, much less argued. But the argument on behalf of the appellant is that the question raised is one of pure law and arises on the facts of the case, proved or admitted. It seems to me that the question is one of mixed fact and law, and therefore, it ought to be pleaded and proved if contested by the other party. In this context it is necessary to examine, however briefly, the scope and ambit of the 'doctrine of merger' so far as it is relevant for the present case.
11. The 'doctrine of merger, in so far as it concerns a lessor and lessee, is clearly set out in Section 111(d) of the Transfer of Property Act. It reads:
'A lease of immoveable property determines:--
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right?
* * *'
12. It is clear from the above that if the interest of the lessor in immovable property vests in the lessee the lease disappears. This is based on the principle that a person cannot be his own lessee in regard to immoveable property. In the present case, there is no vesting of the whole of the interest of the lessor in the lessee, not with standing the fact of the agreement to sell and delivery of possession pursuant thereto. Hence this section cannot be of help in resolving the question on hand. Indeed on behalf of the appellant no reliance was placed on this provision of law. What then is the principle on which any reliance could be placed on behalf of the appellant ?
13. In Halsbury's Laws of England, Third Edition. Vol. 32, Para. 587 at page 369, the relevant facet of the doctrine has been stated thus:--
'In equity, the question of merger does not depend upon the mere fact of the union of the estates in the same person, but upon the intention of the parties concerned, and where no intention is expressed or can be implied from the surrounding circumstances, it may be presumed from a consideration of the interests or the duty of the person concerned. In this respect the same principles apply to the merger of estates and to the merger of the charges on the land. It is now provided that there can be no merger by operation of law only of any estate the beneficial interest in which would not be deemed to be merged or extinguished in equity, Consequently in questions of merger, whether arising in reference to legal on equitable estates, the equitable rule now prevails, and merger is not recognised as having taken place contrary to the intention, express or implied, of the parties.'
14. It is clear from the above enunciation, that intention of the parties would be a most important criterion in cases as the one on hand. It seems to me that such an intention will in almost all cases have to be established by objective facts. It is in this sense, that a mention has been made earlier that the question sought to be raised is a mixed question of fact and law.
15. For the above reason. I am clearly of the view that the appellant ought not to be allowed to urge the contention based on the equitable doctrine of merger. In view of this conclusion, it is unnecessary to consider the second contention of Sri N. M. Jagirdar based on the principle of statutory tenancy.
16. Although the above discussion would be sufficient to dismiss this appeal, I shall briefly advert to certain other questions, as they have been debated at some length, bearing on the question of 'doctrine of merger' in relation to the doctrine of part-performance as enacted in Section 53A of the Transfer of Property Act.
17. Section 53A of the Transfer of Property Act was for the first time enacted in 1929 incorporating only partially such equitable doctrine as obtaining in English Law. The essence of the principle in Section 53A is that it affords a defence to a person in possession of immovable property provided the conditions specified therein are satisfied, The question whether a lease is destroyed in the case of a lessee who is also entitled to posssession under Section 53A of the Transfer of Property Act arose directly for consideration in a learned single Judge's decision of the Madras High Court in Annamalai Goundan v. Venkatasami Naidu. : AIR1959Mad354 relied on behalf of the respondent. It was held therein that in such circumstances the earlier lease stands extinguished. The enunciation is at page 355 and runs thus:
'.....There can be no doubt in this case that the conditions laid down in Section 53A of the Transfer of Property Act are fulfilled even though a contract to sell alone was cited for the contention that deed of transfer should have been obtained by petitioners, before they could invoke Section 53A. Indeed the very language of the section is against such a contention. The question whether this defence would be open in a proceeding for eviction under the Madras Cultivating Tenants Protection Act is really beside the point, because, the moment possession is taken or continued under the contract of sale, the original relationship of landlord and tenants ceases to exist and the landlord cannot take advantage of the provisions of the Madras Cultivating Tenants Protection Act to file an application for eviction .....'
18. In the above circumstances. St remains only to briefly refer to the decision cited at the Bar. Reliance was placed on behalf of the appellant on the case of Varda v. Lakhma, (1877 Born PJ 422) in support of the view that the possession of immoveable property pursuant to an agreement to sell was only permissive and therefore, it cannot at all be characterised as a right higher than that of a tenancy. That decision, in my view turned on the facts of that case and it has not much bearing on the question with which we are concerned at present. Moreover, it was a decision rendered prior to the enactment of Section 53A of the Transfer of Property Act.
19. In R. Abdul Hamid v. N. Subbiah Shetty, (1967-2 Mys LJ 441), this Court had occasion to consider the 'doctrine of merger' between a lessor and lessee. On the facts of that case it was held that the intention to preserve the earlier lease was manifest even from the terms of the later transactions. Hence it fell clearly within the general equitable doctrine earlier extracted from Halsbury's. Similar was the position in the case of Kashi v. Durga, (1911) 12 Ind Gas 734 (Nag). In that case the intention was clearly gatherable from the fact that both the lease and mortgage concerned with the plea of merger were executed on one and the same day.
20. Lastly, it may be relevant to mention one other circumstance in the context of the argument relative to 'doctrine of merger.' The contention is that the lease had revived on account of the failure of the later agreement. The question that arises is whether the later agreement to sell has failed at all in the sense that it is inoperative in the eye of law for one reason or other If the agreement is good in law and the terms thereof are only broken by a party to the document resulting in a suit of the present nature, it would be a matter of considerable doubt that whether in such an event the tenancy would stand revived at all. It is, however, unnecessary to examine this question further for our present purpose.
21. In the result the appeal fails and is dismissed with costs.