Amaresh Roy, J.
1. There are two appeals. These two appeals arise put of two suits between the same parties. In one, which was Title Suit No. 55 of 1962, the predecessor of the present respondents was the plaintiff and the present appellant was the defendant. In the other suit, which was Title Suit No. 86 of 1963, the present appellant was the plaintiff and the predecessor of the present respondents was the defendant. Both the suits were over the dispute between the parties regarding a property which was the common disputed property in both, the suits. The background of that dispute was the undisputed fact that Gour Chandra Das, who was the predecessor of the present respondents was the owner of the suit land and he inducted the present appellant Prabhu Dayal Marwari into possession of the suit land as a tenant by a contract of tenancy which has been brought in the evidence in the case as Exhibit F. In it there was a stipulation that the tenant will pay a monthly rent at first fixed at Rs. 9-8 annas per month and a hut will be constructed costs of which construction will be initially borne by the said tenant Prabhu Dayal Marwari, but the amount of the expenses of the construction will be adjusted with the rents payable by him and so long as the expenses of that construction are not wiped off the landlord would not get any cash rent but will be entitled to payment of rent only after the amount of the expenses for the construction which was described in that document as loan _.k was repaid to the tenant. There was also a stipulation therein for increasing the monthly rent payable in certain circumstances. That document was executed by the said Gour Chandra Das on 11th Jaistha, 1348 B.S. It is, also the common case of both the parties that during the time after that contract of tenancy and before the suit there had been an increase of rent to a rate of Rs. 16/- per month. According to the defendant that increase was because of the increase in the area of the land which was mentioned in that document Exhibit F to be an area measuring 22 cubits X 17 cubits to an area of 30 cubits X 19 cubits. The additional area, according to the defendant tenant, be added for enabling him to construct a proper structure to serve the purpose for which the tenancy was created. According to the landlord, he, however, did not admit that the additional area of land was included in the tenancy at all and according to him the increase in the rent was for other reasons and not for the reason of addition to the land in the area of the tenancy. However that may be, while the tenant was remaining in the occupation as such of the suit property there were monetary transactions between the landlord and the tenant which were said to be transactions of loan advanced by the tenant to the landlord. Thereafter, by a registered Kobala dated 28th Sraban. 1365 B. S. (13th August, 1958) the landlord sold the suit property to the tenant. This sale deed is Exhibit D in the case. On the same date the tenant executed an agreement by which he contracted to convey the property to the landlord if the latter repays the entire sum of Rs. 4,000/- which was the consideration money mentioned in the sale deed Exhibit D before the expiry of the month of Sraban, 1369 B. S. This agreement for re-conveyance is Exhibit 3 in the case.
2. Title Suit No. 55 of 1962 was instituted by plaintiff Gour Chandra Das fo r a decree for specific performance of the contract for re-conveyance of the suit property evidenced by Exhibit 3 on the averment that he had repeatedly requested the tenant to execute a deed of reconveyance by accepting the money that was offered, but the latter on various grounds and pretexts delayed the matter and ultimately gave out that unless the landlord would execute a deed of permanent lease in respect of the suit property in favour of the tenant he would not re-convey the property. In that suit a decree for specific performance of the contract for re-conveyance of the property was prayed for and also there was a prayer for Khas possession thereof and for recovery of a sum of Rs. 90/- as expenses incurred by the plaintiff for purchasing the stamp paper for the deed of re-conveyance and also for mesne profits.
3. The other suit, Title Suit No. 86 of 1963 was instituted by Prabhu Dayal Marwari for a decree for specific performance of the contract of an alleged permanent lease relating to the suit property and in the alternative for declaration that he had acquired non-eject-able non-agricultural tenancy right in respect of the suit land and also for a declaration that the landlord was not entitled to the reliefs prayed for in Title Suit No. 55 of 1962. There was also a prayer for permanent injunction restraining the landlord from proceeding with his suit.
4. In the trial Court the two suits were heard analogously. The decision in the trial Court was that the Title Suit No. 55 of 1962 was decreed in part on contest with proportionate costs to the plaintiff granting the plaintiff in that suit a decree for specific performance of contract for re-conveyance of the suit property. It was also decreed that the plaintiff shall get mesne profits from the date of the suit till the recovery of possession. It was also found by the learned Subordinate Judge in his judgment that the plaintiff is also entitled to get Khas possession on the basis of the deed of reconveyance to be executed by the defendant Title Suit No. 86 of 1963 that was instituted by the tenant Prabhu Dayal Marwari was dismissed on contest. Both the parties were directed to bear their respective costs in that suit.
5. Against the above decisions the tenant Prabhu Dayal Marwari preferred two appeals in respect of the decisions of the two suits. Title Appeal No. 198 of 1964 was against the decree passed in Title Suit No. 86 of 1963 and Title Appeal No. 199 of 1964 was against the decree of dismissal of the Title Suit No. 55 of 1962. These two appeals were also heard analogously and had been disposed of by the learned Additional District Judge, Hooghly by one judgment by which both the appeals were dismissed on contest with costs and the decrees of the trial Court in both the suits were affirmed. Against that decision of the appellate Court two second appeals have been preferred in this Court being Second Appeals Nos. 1034 and 1035 of 1966 arising out of Title Appeals Nos. 199 and 198 of 1964.
6. Mr. S.C. Dasgupta appearing on behalf of appellant in both the appeals has raised mainly three questions, first of which is that the two courts below have committed an error of law by assuming that by the sale of the property effected by the sale deed Ext. D there was a merger of the whole of the landlord's interest with the whole of the tenant's interest and the agreement for reconveyance Ext. 3 was in respect of the entire interest in the suit property both of the landlord and of the tenant as a consequence of such assumed merger.
7. From that stems out another contention of Mr. Dasgupta, learned Advocate for the appellant. He urges it also as a point of law that the decree for Khas possession and for mesne profits till the recovery of possession passed in favour of the landlord has been erroneous. The second contention of Mr. Dasgupta is that the courts below have committed error of law by holding that the nature of the tenancy which Mr. Dasgupta's client held under the respondents was not that of a non-agricultural tenancy, implying thereby that the tenancy was of a nature that would be governed by the West Bengal Premises Tenancy Act. The third important contention of Mr. Dasgupta for the appellant is that the courts below have committed an error of law by passing a decree for Khas possession of the suit property without adverting to the controversies in the pleadings and evidence and deciding the dispute as regards the area of the land comprised in the tenancy. The fourth and the last important contention of Mr. Dasgupta for the appellant is that there has been an error of law committed by the two courts below by refusing to accept the tenant's contention that there was an agreement by the landlord to grant a permanent lease in favour of the tenant on 26th July, 1962. By raising these contentions Mr. Dasgupta submitted that the decree passed in Title Suit No. 86 of 1962 which was affirmed by the first appellate Court's decree in Title Appeal No. 198 of 1964 should be modified by setting aside the decree for Khas possession and mesne profits passed against the tenant even if the decree for specific performance of the agreement for re-conveyance may be affirmed, but at the same time Mr. Das-gupta contends that the dismissal of the suit instituted by his client, that is, Title Suit No. 86 of 1963 should be set aside and a decree for specific performance of the alleged contract of a permanent lease should be passed against the landlord in respect of the suit property comprising in the tenancy an area of 30 cubits X 19 cubits with structures thereon at a monthly rent of Rs. 16/- per month.
8. On behalf of the respondents in both the appeals Mr. Dhruba Kumar Mukherjee, learned Advocate has contested Mr. Dasgupta's contention by urging that on the facts proved arid found it should be held that there was in law a merger of the landlord's interest with the tenant's interest and what was stipulated to be re-conveyed by the document Ext. 3 was the entire property including the interest of both the landlord and tenant That being so, according to Mr. Mukherjee the learned courts below were right in passing the decree for specific performance of that contract Ext. 3 and also in passing the decree for Khas possession and mesne profits till the recovery of . possession. But, Mr. Mukherjee, in his accustomed fairness did concede that there has been an omission by the courts below to decide on the question of the area of tenancy which omission, however, according to Mr. Mukherjee was of no consequence because of what he contended to be the merger having obliterated the tenancy. Mr. Mukheriee, however, reasonably foresaw that if his contention in support of the theory of merger would not succeed, then the true area of the land of the tenancy need have to be decided and also the decree for Khas possession and mesne profits will have to be revised. On the question of the specific performance of a contract for a permanent lease that has been the basis of the tenant's suit being Title Suit No. 86 of 1963 Mr. Mukherjee urged that the concurrent findings on issues of fact arrived at by the two courts below having been against the tenant by disbelief of his story in support of that agreement for permanent lease the Second Appeal No. 1035 of 1966 is concluded by findings of fact which cannot be re-opened in this Court.
9. For deciding the points thus raised by the learned Advocates for both the sides most important questions are (1) did the transactions of sale evinced by Ext. D and the agreement for re-conveyance evinced by Ext. 3 were such as resulted as a legal consequence in the merger of the tenant's interest with that of the landlord and consequently the agreement for re-conveyance Ext. 3 was in spite of that nature of interest of the landlord and the tenant was merged together, (2) what was the nature of the tenancy which was created by the stipulation in Ext. F, was it a non-agricultural tenancy or was it a tenancy to which the West Bengal Premises Tenancy Act, 1956 should apply; incidentally what was the area of the land comprising the tenancy and (3) whether the tenant has succeeded in establishing as a fact the agreement for a permanent lease as pleaded by him in Title Suit No. 86 of 1963 and whether on that question the Second Appeal No. 1035 of 1966 is concluded by concurrent findings of fact arrived at in the courts below. When these questions were decided one way or the other, the other ancillary questions which were argued on both sides before me with commendable thoroughness and grit are resolved by the result of the decisions on the main points abovenoted. I will therefore take up those three questions in seriatim.
10. It appears from the judgments of the two courts below that both the courts were agreed that the transaction evinced by the deed of sale Ext. D was inextricably connected with the transaction evinced by the agreement for re-conveyance Ext. 3, so much so that the two together should be viewed as one and the same transaction. This is undoubtedly a finding on an issue of fact on which both the courts are agreed. On hearing the learned Advocates on both the sides I also agree with that view and hold that the two documents were part and parcel of the same transaction. That being so, although the language in the sale deed Ext. D is bearing the character of absolute transfer of the entire interest of the landlord in the land and the structures including the possession of the property, that must have to be taken in conjunction with the language that has been employed in the other document Ext. 3 which is the agreement for re-conveyance executed on the same date by the same parties. The language in that document Ext. 3 is clearly the language of a stipulation by which the agreement was to re-convey what was being sold by Ext. D. There is no doubt at all that the property sold by Ext. D was only the landlord's interest and therefore the agreement for re-conveyance Ext. 3 was not only intending to be an agreement for re-conveyance of that interest of the landlord, but also that intention is clearly expressed by the Bengali words used in that document Ext. 3 which reads
^^vkiukj laifk vkiukds Qsjr fncks**
Looked that way which is the only reasonable and legal was to understand the intention of the parties to the transaction there is no doubt at all that though ordinarily when the landlord's interest in the whole and the tenant's interest in the whole coalesce in the same head by purchase the lesser interest of the tenant merges in the superior interest of the landlord to lose its identity and separate existence as was pointed out, in Badri Narain Jha v. Rameshwar Dayal Singh, : 2SCR153 , yet in the present case by the conjunction of the agreement for sale which was a contemporaneous transaction with the transaction evinced by the deed of sale, Ext. D there was a clear intention of the parties to keep in existence the separate identity of the tenant's interest, so much so that there was no merger and what was being stipulated in the agreement for re-conveyance Ext. 3 was re-conveyance of the landlord's interests only.
11. In answer to that contention of Mr. Dasgupta, Mr. Mukherjee learned Advocate for the respondents has contended that Section 111(d) of the Transfer of Property Act should govern this case. That clause is in these terms :
'111. 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. Mr. Mukherjee has relied on several decisions of many High Courts in India. Of those decisions some are not decisions on Section 111(d) of the Transfer of Property Act, but are decisions either on Section 111(e) or Section 111(f) of the Transfer of Property Act and therefore would not be helpful. It is to be noticed that two of the decisions cited by Mr. Mukherjee are decisions pronounced upon interpretation of Section 111(d) of the Transfer of Property Act and I will make reference to those two decisions only. In one of those two decisions given by a Division Bench of this Court in the case of Suraj Chandra Mondal v. Beharilal Mondal, 43 Cal WN 1126 = (AIR 1943 Cal 692) Mukherjea, J. has observed that the intention of the parties is the crux of the effect contemplated by Section 111(d) of the Transfer of Property Act. As against that we have to notice that a Division Bench of the Allahabad High Court in the case of Reoti Saran v. Hargu Lal, : AIR1964All542 observed that intention is of no import at all for obtaining the result of merger under Section 111(d) of the Transfer of Property Act. This conflict of views between two Division Benches of the two High Courts is remarkable indeed. But for the purpose of decision of the present case not only a Division Bench decision of this High Court is binding on me, more stronger reason in my mind is that I respectfully agree with and follow the decision of the Division Bench of this Court emanating from the Hon'ble Mr. Justice Mukherjea (as his Lordship then was) in preference to the contrary view of the Division Bench of the Allahabad High Court for which also I have profound respect. I may add that the importance of the intention of the parties to the transaction is emphasized in the language in Section 111(d) of the Transfer of Property Act by three phrases at three different places in one sentence which are 'in case' at the beginning, 'in the whole' in the middle and 'become vested' at the end. This clamour of past participle of necessity envisages that the factual event contemplated in that language has a possibility as happened in fact by the intention of the parties to the transaction. However that may be, on the authority of the decision of the Division Bench of this Court abovementioned I feel safe to hold that intention is the essential element for obtaining the result of merge and in the present case absence of the intention is clearly apparent by the contemporaneous document Ext. 3, the particular language of which I have quoted above. I therefore hold that the courts below were in error in proceeding on the footing that there was in fact a merger by the transaction which is evinced by the deed of sale Ext. D and the agreement for re-conveyance Ext. 3 both executed by the same parties on the same date. In law there was no merger and what was stipulated by Ext. 3 to be re-conveyed was the landlord's interest which was being sold by Ext. D. Mr. Dasgupta, learned Advocate for the appellant is therefore right in his contention that the decree for specific performance can only be of the contract and that what will be re-conveyed is the landlord's interest. The tenant's interest shall remain in the hands of the tenant. To that extent the decree passed in Title Suit No. 55 of 1962 must be modified. As a consequence the plaintiff in Title Suit No. 55 of 1962 is not entitled to Khas possession of the suit property nor to mesne profits. Those parts of the decree passed in Title Suit No. 55 of 1962 must be set aside.
13. The next question of importance that remains to be decided is what was the nature of the tenancy that was created by the letter of tenancy Ext. F. It is true that only open land was existing when the contract of tenancy was being entered into, but the terms in Ext. F make it clear that the tenant was being inducted to be a tenant not of the land alone but also of a structure that will be constructed on the land and the rent will be for the land and the structure. It is again true that Ext, F clearly states that the expenses for construction of the structure on the land will be provided by the tenant at the first instance. But the document also makes it clear that that advanced money was to be advanced as 'loan' to the landlord which loan will be repaid by adjustment with rents payable by the tenant and until the entire 'loan' is repaid the landlord will not receive any cash rent. That being so, the question whether the tenant is a non-agricultural tenant has to be examined by reference to the definition of non-agricultural tenant. Section 2(5) of Non-Agricultural Tenancy Act defines a non-agricultural tenant thus:--
'(5) 'non-agricultural tenant' means a person who holds non-agricultural land under another person and is, or but for a special contract would be, liable to pay rent to such person for that land but does not include any person who holds any such land on which any premises occupied by such person are situated if such premises have been erected, or are owned, by the person to whom such occupier is, or but for a special contract would be liable to pay rent for such occupation.'
As in the present case the structure on the land cannot be said to have either been erected or owned by the tenant, but erected and owned by another person, that is, the landlord, (though such erection was through the agency of and by the money advanced as loan by the tenant) it comes within the negative part of the definition that non-agricultural tenant does not include a person in the position of the present tenant. Therefore it must be held that the courts below were right in their decision that the tenancy was not a non-agricultural tenancy. That is so not for the reason that has prevailed with the courts below, but for the reason that the tenant does not come within the definition of the non-agricultural tenant as contemplated in the Non-agricultural Tenancy Act. The result is that the nature of the tenancy must be held to be one governed by West Bengal Premises Tenancy Act, 1956.
14. On the question of the area of the tenancy it was pointed out by Mr. Mukherjee for the respondents that the original area of 22 cubits X 17 cubits had been increased to an area of 30 cubits X 19 cubits and the rent had also increased from Rs. 9-8 annas per month to Rs. 16/- per month. But, on that issue, the contention of the tenant that the additional area was added in the tenancy and for that reason the rent was increased is more reliable and acceptable upon the materials in the case than the contrary contention on behalf of the landlord that though the rent increased, it had no connexion with the increase in the area of the land and the extent of the tenancy remained at that lesser area as fixed originally by Ext. F. The contention of the defendant appellant therefore stands as found by the courts below and I agree with that finding and therefore it cannot be disturbed in this Second Appeal.
15. In the result the Second Appeal No. 1035 of 1966 fails in its entirety and is dismissed without costs. Second Appeal No. 1034 of 1966 succeeds in part. The decrees passed in Title Suit No. 55 of 1962 and in the appeal arising out of the said suit being Title Appeal No. 199 of 1964 are modified to the extent indicated above.
16. In the circumstances of the case in Second Appeal No. 1034 of 1966 there will be no order as to costs.
17. The appeals having been disposed of the application for interim injunction is disposed of and no further order is necessary on this application.
18. The Rules which were issued upon the applications for interim injunction are disposed of and are discharged without any order as to costs.
19. Leave under Clause 15 of the Letters Patent is prayed for and is refused.