C.M. Lodha, J.
1. These two appeals can be conveniently disposed of by a single judgement as they arise out of the same order.
2. The facts giving rise to these appeals may be stated within a narrow compass as the facts on which the decision of these appeals turn are not in dispute.
3. The appellant Banshilal filed a suit for eviction and arrears of rent against the respondent Noor Mohammed and one Heeralal in the Court of Civil Judge,Bhilwara which was dismissed on 8-2-1967. Aggrieved by the judgment and decree passed by the learned Civil Judge, Bhilwara Banshilal filed an appeal in the Court of District Judge, Bhilwara. During the pendency of the appeal the respondent Noor Mohammed submitted the alleged written agreement between the parties Ex. A. 1 dated 11-9-1967 and by an application prayed that the appeal be dismissed. This application was opposed by the appellant Banshilal on the ground that the suit had not been adjusted wholly or in part by any lawful agreement or compromise, and it was therefore prayed that the appeal may be decided on merits. The learned District Judge, however, by his order dated 21-4-1969 came to the conclusion that relationship of landlord and tenant between Banshilal and Noor Mohammed had coma to an end and thus the suit had been adjusted wholly by a lawful agreement between the parties. In this view of the matter the plaintiff's appeal was dismissed.
4. The plaintiff Banshilal has therefore filed this second appeal from the judgment and decree by which his appeal before the District Judge had been dismissed, and had also filed Miscellaneous Appeal under Order 43, Rule 1(m), C.P.C. from the order recording the compromise.
5. The learned counsel for the respondent Noor Mohd. has raised a preliminary objection regarding the second appeal No. 353/1969 that the appeal is not within limitation, and that it is also not maintainable. His objection is that the appellant is only entitled to exclude the time required for obtaining copy of the judgment under appeal and not the time required for obtaining a copy of the decree separately. It may be observed that the judgment of the lower court was announced on 21-4-1969. The appellant applied for a copy of the judgment on 22-4-1969 and was supplied the same on 30-4-1969. Thus he was entitled to exclude 9 days for obtaining copy of the judgment. He applied for copy of the decree separately on 18-7-1969, and was supplied the same on 25-7-1969. Thus two separate applications were made for obtaining copies of the judgment and decree, and the period required for obtaining the same does not overlap each other. Both the applications for the copies of the judgment as well as the decree were made within the period of 90 days prescribed for presentation of the appeal. In my opinion he is clearly entitled to exclude the whole period that was required for obtaining the copy of the judgment as well as the copy of the decree in the present case. It is not disputed that if time required for obtaining copies of the judgment as well as the decree is excluded, the appeal would be within time. Consequently I over-rule the preliminary objection on the ground of limitation and hold that the appeal has been filed within time.
6. As regards the maintainability of the second appeal the objection of the learned counsel is that the miscellaneous appeal directed against the order recording the compromise under Order 43, Rule 1(m). C. P.C. deserves to be dismissed, as the copy of the judgment of the trial court has not been filed within limitation in that appeal, and if that appeal is dismissed then this second appeal would not be maintainable. I may observe here that apart from the question whether the miscellaneous appeal filed by the appellant is defective, the fact remains that the second appeal has been directed against the judgment and decree of the lower appellate court of which the plaintiff's appeal was dismissed. It appears that the lower appellate court passed a composite order holding that the suit had been adjusted by a compromise and that the appeal was liable to be dismissed. In these circumstances the appellant was entitled to file a regular second appeal under Section 100. C.P.C. from the judgment and decree dismissing his first appeal. In the present case he has also chosen to file a miscellaneous appeal under Order 43, Rule 1, Civil P.C. against the order recording the compromise, but, in my opinion even if he had not done so a regular appeal from the decree by the lower court would have been maintainable. In this view of the matter I do not see any force in this preliminary objection either and hereby over-rule it.
7. This brings me to the consideration of the second appeal on merits. It appears from the terms of the agreement submitted by the respondent in the lower appellate court that the appellent had agreed to sell away the premises in question along with other property for a consideration of Rs. 71,000/-, and in lieu thereof the respondent paid a sum of Rs. 5000/- as part of the purchase price, and the appellant agreed to execute a sale deed of the property on the stipulated date. On the basis of this agreement the learned District Judge has come to the conclusion that there was determination of lease by implied surrender under Section 111(f) of the Transfer of Property Act.
8. On the hearing the learned counsel for the parties and perusing the agreement Ex. A. 1 I have come to the conclusion that the finding arrived at by the learned District Judge is wholly unjustified. There is no question of surrender,express or implied of the lease in the present case. At best if at all the defendant-tenant could press into service any clause under Section 111, it is clause (d) under which a lease of immoveable property determines 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. It is, however, amply clear that merely by execution of the agreement to sell the property in question the interest of the lessor Banshilal did not become vested in the lessee Noor Mohammed and by no stretch of imagination can it be said that on execution of the agreement Ex. A. 1, even if it is assumed for the sake of disposal of this appeal that this agreement was executed the rights of the lessor came to an end. It is too well known that by mere execution of an agreement to sell, there is no transfer of interest in the property. Learned counsel for the respondent wanted to press into service the doctrine of part performance under Section 53A of the Transfer of Property Act to show that Noor Mohammed had become owner of the property and was entitled to defend his title on its basis. Suffice it to say, that such a plea cannot be raised in support of the application for recording compromise of suit under Order 23, Rule 3 C.P.C. and it may be open to the defendant to raise such a plea if so advised at an appropriate stage but he cannot take any advantage of it for showing that the suit for eviction based on tenancy has been adjusted merely by an agreement to sell. It is conceded by the learned counsel for the respondent that no sale deed has yet been registered in favour of Noor Mohammed nor the balance of sale price Rs. 66,000/- has been paid to the appellant Banshilal. In these circumstances there is no room for argument that the interests of the lessee and the lessor in the property in question have become vested at the same time in the lessee in the same right. In these circumstances there is no escape from the conclusion that the lease in question cannot be said to have been determined merely by execution of an agreement to sell Ex. A. 1. In this view of the matter the second appeal No. 353 of 1969 deserves to be allowed.
9. Accordingly I allow the appeal, set aside the judgment and decree of the learned District Judge, Bhilwara and send the case back to him to restore the appeal in his Court, to its original number and decide it on merits. Costs of this appeal shall abide the final result
10. In view of the fact that the second appeal No. 353 of 1969 has been allowed and the judgment and decree of the lower court have been set aside, it is not necessary to decide the Misc. Appeal No. 83 of 1969 which becomes infructuous and is dismissed as such. There will be no order as to costs with regard to Misc. Appeal No. 83 of 1969.