Harikishan vs Balkishan Panwar and another

Ramanujulu Naidu

The above Civil Revision Petition and Civil Miscellaneous Appeal arising out of a common order dated 30-3-1979 made by the I Additional Judge, City Civil Court, Hyderabad in E.P. No. 16 of 1978 and E.A. No. 200 of 1978 on his file respectively may be conveniently disposed of together. The facts giving rise to the revision petition and the appeal may be briefly stated :--

The petitioner in E.P. No. 16 of 1978 is the plaintiff in O.S. No. 296 of 1971 on the file of the I Additional Judge, City Civil Court, Hyderabad, while the respondents therein are the two defendants in the suit. The petitioner in E.A. No. 200 of 1978 is the 2nd defendant in the suit, while respondents 1 and 2 therein are the plaintiff and the first defendant in the suit respectively. The suit was instituted for specific performance of an agreement of sale dated 1-8-1971 executed by the 1st defendant in favour of the plaintiff whereby she agreed to sell two mulgies bearing Municipal Nos. 15-7-389 and 15-7-390 situate at Begum Bazaar for a sum of Rs. 34,000/- and also for recovery of possession of the two mulgies. The 2nd defendant having purchased from the first defendant one of the two mulgies bearing No. 157-389 for a sum of Rs. 17,000/- under a sale deed dated 13-10-1971 was imputed with notice of the prior agreement of sale in favour of the plaintiff; Prior to the sale in his favour, the 2nd defendant was inducted as a tenant of the mulgi by the first defendant. The suit was decreed on 23-8-1976. C.C.C.A. No. 154 of 1976 on the file of the High Court of Andhra Pradesh preferred by the defendants questioning the decree was dismissed by Kuppuswamy J., on 20-1-1978. A Division Bench of the High Court by its judgement dated 21-8-1978 affirmed the decision of Kuppuswamy J., and rejected L.P.A. No. 67 of 1978 preferred by the defendants assailing his judgment, at the stage of its admission. An oral application for leave to appeal to the Supreme Court against the judgment of the Division Bench was rejected. An application for grant of the special leave to appeal to the Supreme Court against the decision of the Division Bench was also dismissed by the Supreme Court.

Before Kuppuswamy J, it was urged on behalf of the 2nd defendant that the trial Court ought not to have passed a decree for possession as the 2nd defendant was formerly a tenant of the first defendant, the vendor of the plaintiff and that he was not liable to be evicted except in accordance with the provisions of the Andhra Pradesh (Buildings, Lease, Rent and Eviction) Control Act 1960, hereinafter referred to as the Act. It was, however, contended on behalf of the plaintiff that by virtue of the sale deed in his favour, the 2nd defendant becomes a full owner of the mulgi losing his character as a tenant and that the plaintiff was, therefore, entitled to a decree for delivery of physical possession even as against the 2nd defendant. Adverting to the rival contentions, the learned Judge observed :

I find that there was no plea in the written statement to the effect that a decree for physical possession cannot be passed against the second defendant as he is a tenant entitled to the benefits of the Rent Control Act. There is also no issue to this effect. In the circumstances, I do not consider it proper to go into this question; The decree itself merely directs delivery of possession and does not say whether that possession is physical possession or whether it is by way of attornment to the purchaser. It is well settled that even if there is a decree for possession it is open to a tenant to contend in execution proceedings that he is not liable to be evicted by reason of the provisions of the Rent Control Act. I consider that in the circumstances of the case it should be left to the executing Court to decide whether the second defendant is a tenant entitled to the benefits of the provisions of the Rent Control Act and cannot be evicted as contended by Sri Gururaja Rao or whether he has lost his character as a tenant by reason of his purchase and hence, the provisions of the Rent Control Act do not apply as contended by Sri Upendralal Waghray.

While reiterating the contention put forward before Kuppuswamy J., it was urged on behalf of the 2nd defendant before the Division Bench that the learned Judge himself could have decided the question. The Division Bench, while re-affirming the observations of Kuppuswamy J., added :

When there is no plea in the written statement and also there was no issue on this aspect it cannot be said that the learned judge failed to decide the material issue. It is not anybody''s case that the executing court cannot go into that question.

Subsequent to the dismissal of C.C.C.A. No. 154 of 1976 and before rejection of L.P.A. No. 67 of 1978, the plaintiff filed E.P. No. 16 of 1978 on the file of the First Additional Judge, City Civil Court, Hyderabad on 12-4-1978 praying for execution of a sale deed in his favour by both the defendants and for delivery of physical possession of the mulgi bearing No. 15-7-389 after ejecting the 2nd defendant therefrom, for possession of the mulgi bearing No. 15-7-390 by way of attornment to him by the tenant thereof, one Ganga Bishan, inducted by his vendor prior to the agreement in his favour and also attachment of the movables of the 2nd defendant to recover the balance of costs awarded to him both in the suit and in the appeal. A draft sale deed for approval by the executing Court and copies of the same for service on the defendants were filed along with the Execution Petition. Copies of the draft sale deed were served on both the defendants on 20-4-1978. The first defendant remained ex-parte. The second defendant entered appearance through his counsel on 15 6-1978 and asked for time for filing a counter. The petition was accordingly adjourned to 30-6-1978. From 30-6 1978 it was adjourned from time to time at the request of the 2nd defendant for filing his counter and it was only on 13-7-1978 the 2nd defendant filed his counter. In the counter filed by the 2nd defendant no plea was raised that the draft sale deed was, in any way, defective. All that was pleaded was that the 2nd defendant was a statutory tenant within the meaning of the Act and was, therefore, not liable to be evicted except in accordance with the provisions of the Act. At the request of the 2nd defendant, on one ground or the other, the Execution Petition underwent a number of adjournments until the application for grant of special leave was dismissed by the Supreme Court. Subsequent to the dismissal of the special leave application, the executing Court passed an order directing execution and registration of a sale deed by the defendants in favour of the plaintiff in terms of the draft sale deed submitted by the plaintiff. In default, it was ordered by the Court that the same would be done by the Court, Non-judicial stamps for engrossing the sale deed were deposited into the Court. The defendants not having executed the sale deed, the same was executed by the Court and sent for registration through its bailiff on or about 23-12-1978 and registered on 29-12-1978. While so, on 30-12-1978 the 2nd defendant filed E.A. No. 200 of 1978 u/s 151 C.P.C. praying for a review of the draft sale deed as, according to him, it contained certain objectionable covenants and he could not put forward the objections earlier for the reason that the copy of the draft sale deed served upon him was misplaced.

Both the Execution Petition and the Execution Application were taken up together and inquired into. Except documentary evidence, no oral evidence was adduced by the parties. On behalf of the plaintiff, Exs. A-1 to A-6 were marked while Ex. B-1 was marked on behalf of the 2nd defendant. Ex. A-1 is a certified copy of the sale deed dated 13.10.1971 obtained by the 2nd defendant from the first defendant with notice of the prior agreement of sale in favour of the plaintiff. Exs. A-3 and A-4 are certified copies of the written statements of the defendants filed in the suit. Ex. B-1 is a printed copy of the judgment rendered in the suit while Ex. A-5 is a certified copy of the decree drawn up in the suit in favour of the plaintiff. Ex. A-6 is a certified copy of the plan of the suit property attached to the decree...Ex. A-2 is a carbon copy of the judgment passed in C.C.C.A. No. 154 of 1976 on the file of the High Court. It was held by the learned Judge that consequent upon the sale deed obtained by the 2nd defendant, there was merger of the lesser interest be bad in the mulgi as a lessee thereof prior to the sale in his favour, with the larger interest of reversion therein acquired by him under the sale deed dated 13-10-1971, that his rights of tenancy in the mulgi were extinguished on and from the date of the sale deed and that there was no covenant whatsoever in the said sale deed, that his rights of tenancy would revive if for any reason the sale deed could not be given effect to. In the result, the learned Judge passed an order in E.P. No. 16 of 1978 directing delivery of actual physical possession of the mulgi bearing No. 15-7-389 alter evicting the 2nd defendant therefrom and also directing delivery of possion of the other mulgi to the plaintiff by way of attornment of the tenant thereof, Sri Ganga Bisban. A warrant for attachment of the movables of the 2nd defendant for realisation of the balance of the amount of costs claimed in the Execution Petition was also issued. No objections to the terms of the draft sale deed submitted by the plaintiff having been filed by the 2nd defendant until approval of the draft sale deed and execution of the sale deed by the Court in terms thereof, the learned Judge dismissed the execution application.

Aggrieved by the order made in E.P. No. 16 of 1978 and dissatisfied with the order dismissing E.A. No. 200 of 1979, the 2nd defendant preferred C.R.P. No. 345 of 1979 and C.M.A. No. 366 of 1979 respectively.

It was urged on behalf of the 2nd defendant that there could be no merger of his interest u/s 111 (d) of the Transfer of Property Act as a lessee of the mulgi or a tenant thereof with the interest of the lessor required by him under the original of Ex. A-1 dated 13-10-1971 executed in his favour by the first defendant, as the sale deed itself was void and so held to be by the trial Court.

The contention put forward on behalf of the 2nd defendant is wholly untenable as the sale deed obtained by him from the first defendant was not void, but only voidable at the option of the plaintiff, in whose favour there was an earlier agreement of sale with notice to him. In other words, the original of Ex. A-1 was good and perfectly valid against the whole world except the plaintiff who had the right to avoid the transaction evidenced by it and who ultimately did exercise the right. If an authority is needed for the proposition, the same is found in Lala Durga Prasad and Another Vs. Lala Deep Chand and Others, In the said case, their Lordships evolved the proper form of decree to be drafted in a suit instituted by a person holding an agreement of sale in his favour for specific performance of the agreement against his vendor and a subsequent transferee with notice of the agreement. After adverting to the different practices obtaining in various Courts in India, their Lordships observed :

The practice of the courts in India has not been uniform and three distinct lines of thought emerge. (We are of course confining our attention to a ''purchaser''s '' suit for specific performance). According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the plaintiff and direct conveyance by the vendor alone. A second considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchaser alone.

The only statutory provisions which bear on this point are section 91 of the Indian Trusts Act, 1882, section 3 of the Specific Relief Act, 1877 illustration (g) and section 27 of that Act, and section 40 of the Transfer of Property Act,

Section 91 of the Trusts Act does not make the subsequent purchaser with notice a trustee properly so called but saddles him with an obligation in the nature of a trust (because of section 80) and directs that he must hold the property for the benefit of the prior "contractor". If we may so describe the plaintiff, "to the extent necessary to give effect to the contract". Section 3 illustration (g) of the Specific Relief Act makes him a trustee for the plaintiff but only for the purposes of that Act. Section 40 of the Transfer of Property Act enacts that this obligation can be enforced against a subsequent transferee with notice but not against one who holds for consideration and without notice. Section 27 of the Specific Relief Act does not carry the matter any further. All it says is that specific performance may be enforced against.

2 (a) either party thereto

(b) any other person claiming under him by a title arising subsequently to the contract, except a transfer for value who has paid his money in good faith and without notice of the original contract.

None of this helps because none of these provisions directly relate to the form of the decree. It will, therefore, be necessary to analyse each form in the light of other provisions of law.

First, we reach the position that the title to the property has validly passed from the vendor and resides in the subsequent transferee. The sale to him is not void but only voidable at the option of the earlier" contractor". As the title no longer rests in the vendor it would be illogical from a conveyancing point of view to compel him to convey to the plaintiff unless steps are taken to re-vest the title in him either by cancellation of the subsequent sale or by reconveyance from the subsequent purchaser to him. We do not know of any case in which a reconveyance to the vendor was ordered but Sulaiman V.J., adopted the other course in Kali Charan Singh and Another Vs. Janak Deo Singh and Others . He directed cancellation of the subsequent sale and conveyance to the plaintiff by the vendor in accordance with the contract of sale of which the plaintiff sought specific performance. But though this sounds logical the objection to it is that it might bring in its train complications between the vendor and the subsequent purchaser. There may be convenants in the deed between them which it would be inequitable to disturb by cancellation of their deed. Accordingly, we do not think that this is & desirable solution.

We are not enamoured of the next alternative either, namely conveyance by the subsequent purchaser alone to the plaintiff. It is true that would have the effect of vesting the title to the property in the plaintiff but it might be inequitable to compel the subsequent transferee to enter into terms and covenants in the vender''s agreement with the plaintiff to which he would never have agreed had he been a free agent and if the original contract is varied by altering or omitting such terms the court will be remaking the contract, a thing it has no power to do : and in any case it will no longer be specifically enforcing the original contract but another and different one.

In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to joint in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special convenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff.

It is, therefore, beyond doubt that title to the mulgi validly passed from the first defendant to the 2nd defendant by virtue of the sale deed dated 13-10-1971 and resided in him. It was only in pursuance of the decree obtained by the plaintiff, the 2nd defendant was directed or called upon to transfer or pass on his title to the plaintiff. The transaction evidenced by the original of Ex. A-1, was certainly not void, but only voidable.

In the alternative, it was contended on behalf of the 2nd defendant that there could not be any merger u/s 111 (d) of the Transfer of Property Act in the absence of acquisition by the 2nd defendant of the reversion in the mulgi by a valid transaction. Reliance was placed upon the decision in Balaprasad Asaram vs. Asambi AIR 1954 Nag 328. In the said case, the suit was for recovery of possesion of a house and arrears of rent or in the alternative for damages for use and occupation of the house. One Devi Singh executed a sale deed on 28-11-1947 in favour of the plaintiff therein conveying the house. Devi Singh executed another sale deed in respect of the very same property in favour of the 3rd defendant therein on 24-2-1948 in pursuance of an earlier agreement dated 12-9-1947 obtained by the 3rd defendant. The 3rd defendant pleaded that the purchase of the house by the plaintiff was with notice of the earlier agreement in his favour. The 2nd defendant therein was admittedly a tenant of the house inducted by Devising before execution of both the sale deeds. It was also pleaded that the 3rd defendant was a benamidar for the 2nd defendent. The trial Court dismissed the suit, but the lower appellate Court decreed it on that the ground the plaintiff had no notice of the agreement. On appeal to the High Court of Nagpur, it was pleaded on behalf of the 2nd defendant that, in any event, the 2nd defendant could hold the leasehold rights as a shield against the plaintiff. The plea was resisted on the ground that there was merger of the leasehold right in the reversion. Adverting to the rival contentions, the Division Bench observed: No doubt, when the leasehold right and the reversion coincide there is a merger of the lesser estate in the greater, i.e., leasehold rights are merged in the reversion. There cannot, however, be any merger unless the lessee acquires the reversion by a valid transaction. If in this case the sale in favour of the plaintiff be good. Devising had no right to execute a sale deed. Exhibit 2-D-2 in favour of defendant 3 on a later date and he or defendant 2 for whom he is said to be the benamidar could not legally acquire the reversion. Defendant 2 could then hold the leasehold rights as a shield against the plaintiff. In that case, in the absence of determination of the lease either under S.III (g) or III (b), plaintiff would not be entitled to eject defendant 2.

It may be noted that it was held by the Division Bench that the sale in favour of the plaintiff being good, Devi Singh could not and did not convey any title to the property in favour of the 3rd defendant or the 2nd defendant on a later date and that the 2nd defendant could, therefore, set up his leasehold rights as a shield against the plaintiff. In the instant case, the sale deed obtained by the 2nd defendant was perfectly valid not only as between him and the 1st defendant, his vendor, but against the whole world except the plaintiff, at whose option it was liable to be avoided and was avoided. Any other interpretation of the observations of the Division Bench of the Nagpur High Court would be opposed to the authoritative pronouncement of the Supreme Court, in Badri Narain Jha and Others Vs. Rameshwar Dayal Singh and Others, where it was laid down:

If the lessor purchases the lessee''s interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessor''s interest. In such a case the leasehold and the reversion cannot be said to coincide.

It was next urged on behalf of the 2nd defendant that even if there was merger of the 2nd defendant''s interest in the mulgi as a lessee thereof with that of the reversion therein acquired by him under the sale deed dated 13-10-1971, the lease obtained by him earlier would spring into active life on the sale deed being held to be ineffective or unenforceable against the plaintiff Reliance was placed upon the decision in Bangar Raju vs. Kinthali Avatharam 1965 (1) ALT 132 (DB). In the said case, the landlord, the 3rd defendant therein first leased out his property to defendants 1 and 2 therein in the year 1954 on an yearly rental of Rs. 800/-. On 20-11-1957 the landlord borrow Rs. 6,000/- from defendants 1 and 2 and executed a deed of usufructuary mortgage in their favour to secure repayment of the mortgage money. Later, the landlord sold the property to the plaintiff therein for a sum of Rs. 10,000/- with a stipulation that from out of the sale proceeds the mortgage should be redeemed and the balance should be paid to him. The plaintiff thereupon sued for redemption of the usufructuary mortgage and for recovery of possession of the mortgaged property. The suit was resisted by defendants 1 and 2 contending inter alia that they were protected by the Act and that consequently the plaintiff could not recover possession of the properly. The trial Court decreed the suit as prayed for. Defendants 1 and 2 carried the matter in Second Appeal to the High Court. It was urged on behalf of the plaintiff that the moment defendants 1 and 2 accepted the usufructuary mortgage from the 3rd defendant, the lease was extinguished and that they were obliged to surrender possession at the end of three years by reason of the rights and obligations created by the deed of usufructuary mortgage. Repelling the contention of the plaintiff their Lordship held that it was difficult to posit that either the tease was impliedly extinguished or that there was an implied surrender of the lease, that there was no obstacle in the way of co-existence of both the lease and the mortgage and that even assuming that the mortgage and the lease could not coexist, the lease which was dormant would spring into active life on the mortgage bring redeemed, since it was not shown that lease was either expressly or impliedly extinguished. It may be noted that there could be no question of merger of the lease and the mortgage u/s III (d) of the Transfer of Property Act as both under the mortgage only a limited interest was transferred in favour of the lessees and mortgagees. There was no extinction of the lease because the lessees acquired a fraction of the reversion under the deed of usufructuary mortgagee. In fact, in Shah Mathuradas Maganlal and Co. Vs. Nagappa Shankarappa Malage and Others, it was so held by their Lordships of the Supreme Court. The relevant observations may be usefully extracted here under:

For a merger to arise, it is necessary that a lesser estate and a higher estate should merge in one person at one and the same time and in the same right, and no interest in the property should remain outside. In the case of a lease the estate that is in the lessor is a reversion. In the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. Therefore, there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. The view expressed in Narayan Dogra Shetty Vs. Ramchandra Shivram Hingne, is correct.

Section III of the Transfer of Property Act in clauses (e) and (f) deals with surrender, and in Cl. (d) with merger. Cl. (d) states that lease in movable properties determines in case the interest of the leasee or the lessor in the whole of the property becomes vested at the same time in one person in the same right. When a lease held and a reversion coincide there is a merger of a lesser estate in the greater The leasehold is the lessor estate, for it is carved out of the estate of the owner, which is the reversion. The lesser estate is merged in the greater. The lesor purchases the lessee''s interest, the lease is extinguished, as the same man tenant. The interests of the lessor and the lessee must be in the whole of the property, otherwise there is no merger; The interest of the lessor and the lessee in the whole of the property should become vested at the same time in one person in the same right. Thus a lease is not extinquished because the lessee purchases a part of the reversion.

Relying upon the decision in Uligseppa vs. Mohan Rao 1969 (1) APLJ 351 (DB)=1969 (2) ALT 268 it was feebly urged that the Act being a complete code or a self-contained code with a special machinery of Rent Control Tribunals together with appeal to the Supreme Court and revision to the High Court in connection with applications for eviction and orders thereon, Chapter V of the Transfer of Property Act would not be applicable to cases coming under the Act and that the plaintiff was not entitled to invoke the provisions of Section 3 (d) of the Transfer of Property Act. The Division Bench, no doubt, observed: Examined in this background, the State Rent Act seems to us to be a complete code intended by the Legislature to wholly occupy the three subjects mentioned in the preamble of the Act concerning the relationship of landlord and tenant in regard to houses and buildings and such law was reserved for the consideration of the President and has received his assent. It must necessarily prevail over Chapter V of the Transfer of Property Act although it may not in some respects be in direct conflict with the provisons of the Transfer of Property Act. Consequently Chapter V is not applicable to cases coming under the Act.

It is, however, pertinent to note that earlier the Division Bench stated:

It is not necessary to take an extreme view that because or the Special Act, Chapter V of the Transfer of Property Act stands impliedly repealed and such a repeal, if not expressed must flow from necessary implication. It is true that wherever the special Act subsequently enacted on the same subject which although expressed in affirmative language introduces special conditions and restrictions, the subsequent special Act may usually by considered as repealing by implication the Law enacted in general terms previously on the same subject. But prior enactments can be rendered inoperative without being actually repealed either expressly or by necessary implication. (See Craies on Statute Law, page 373). It other words, the general enactment would be considered as pre tanto avoided by the special enactment on the same subject although the general law may remain in existence and unrepealed notwithstanding that the Special Act in specified cases may intercept the operation of the general law.

It may be noted that in the aforesaid case their Lordships were dealing with the requirement of issue of notice either u/s (g) in cases coming under that clause or u/s (h) read with Section 106 in cases falling within the ambit of that provision of the Transfer of Property Act to determine the tenancy before an application for eviction on any of the grounds mentioned in Section 10 of the Act was filed before the Rent Controller. Their Lordships did not lay down that where the Act was silent or where the provisions of the Act were not inconsistent with any of the provisions contained in Chapter V of the Transfer of Property Act those provisions of Chapter V, or the Transfer of Property Act would be inoperative. In Puwada Venkateswara Rao Vs. Chidamana Venkata Ramana, the correctness of the decision of the Division Bench followed by a learned single Judge of the High Court was challenged. Adverting to the same, their Lordships observed:

The only question raised by the appellant before us, in this appeal by special leave, is that no notice u/s 106 of the Transfer of Property Act had been served upon the appellant according to the finding of the Andhra Pradesh High Court itself It was, therefore, urged that the petition u/s 10 of Act could not succeed. The Andhra Pradesh High Court had, however, relied upon Ulligappa v. S. Mohan Rao, (1969-2 A.L.T. 262), where a Division Bench of that High Court had held that the Act with which we are now concerned, provided a procedure for eviction of tenants which was self-contained so that no recourse to the provisions of Section 106 of the Transfer of Property Act was necessary.

We may also refer here to the observations of this Court in Raval and Co. Vs. K.G. Ramachandran and Others, There this Court noticed Shri Hem Chand V. Smt. Sham Devi, ILR (1965) Pun 36 and pointed out "that it was held there that the Act under consideration in that case provided the whole procedure for obtaining the relief of objectment and, that being so, provisions of Section 106 of the Transfer of Property Act had no relevence". No doubt the decision mentioned with approval by the Court related to another enactment. But, the principle indicated by this Court was the same as that applied by the Andhra Pradesh High Court.

It may be noted that the decision of the Division Bench is in conformity with the principle enunciated by their Lordships in Raval and Co. Vs. K.G. Ramachandran and Others, where it was laid down that as the Act under consideration therein provided the whole procedure for obtaining the relief of ejectment, the provisions of Section 106 of the Transfer of Property Act had no relevance. There Lordships of the Supreme Court did not lay down that in cases where the Rent Acts were in force the cases would be governed exclusively by the provisions of the Rent Acts irrespective of the fact that the provisions of the Rent Acts are silent in respect of situation covered by Chapter V of the Transfer of Property Act or are not inconsistent with the provisions of Chapter V of the Transfer of Property Act. It is now firmly settled by the Supreme Court that where the lesser purchases the whole of the lessee''s interest the lease is extinguished vide Badri Narain Jha and Others Vs. Rameshwar Dayal Singh and Others, already referred to.

In Reoti Saran Vs. Hargu Lal, the defendant therein was a tenant of certain shops owned by the plaintiff therein, (sic) Saran and his brothers. While being a tenant, Hargu Lal purchased the shops from the plaintiff and his brothers on 2-7-1942. On the same day, the parties entered into a written agreement under which Hargu Lal promised to re-convey the property to his vendors within a period of eight years. In pursuance of the agreement, plaintiff and his brothers paid up the price on 21-12-1946 and re-purchased property from Hargu Lal. There was partition between the plaintiff and his brothers. As a consequence of that partition, the shops fell to the share of the plaintiff. Although the shops were re-conveyed, the defendant declined to vacate the shops. A suit was, therefore, instituted for recovery of possession of the shops for damages for the wrongful occupation from the date of the purchase to the date of institution of the suit. The suit was partly decreed in the first instance. The trial Court merely passed a decree for a sum of Rs. 145/- as arrears of rent and refused the relief of possession. On appeal the plea of the plaintiff that as consequence of merger of the tenancy rights with, the proprietary rights, the defendant lost his character as a tenant of the shops was upheld and a decree for possession of the shops was passed in favour of the plaintiff. In Second Appeal their Lordships held, following the decision in Badri Narain Jha and Others Vs. Rameshwar Dayal Singh and Others, that the defendant remained the full owner of the property from the date of his purchase until resale by him in the absence of a provision for keeping the tenancy right alive either in the sale deed or in the agreement to re-convey and that the execution of the agreement to re-convey made no difference to the applicability of the provisions of Section 111 (d) of the Transfer of Property Act.

In Shobhraj Mal vs. Kamla Devi 1978 (2) AIR CJ 323 a house first leased out was subsequently sold by the landlords. After about ten months from the date of the sale the respondent therein, Smt. Kamla Devi instituted the suit against the purchasers and sellers claiming possession of the suit house on the ground of preferential right of pre-emption under the Rajasthan Pre-emption Act, 1966. The suit was decreed and a decree for pre-emption was passed in favour of Smt. Kamla Devi on payment of a certain amount to the vendees. The decree, when put in execution, was resisted by the vendees on the ground that the decree-holder was not entitled to evict the vendees as they were in occupation of the house as tenants prior to the purchase by them. The plea having been repelled by the executing Court the vendees appealed to the High Court of Rajasthan. Relying upon the decision of a learned single Judge of the Delhi High Court in Ram Kishan Das vs. Zahira 1968 (7) PLR Del 11 it was contended on behalf of the vendees that a pre-emptor when he secured a pre-emption decree merely stepped into the shoes of the vendee, that it was not a re-sale of the property, that the result of a successful suit for pre-emption was that the name of the vendee was erased from the sale deed and that of the successful preempts was inserted in its place. It was also urged that if instead of the tenants, the pre-emptor had purchased the property by a private contract from the landlords, they could not in law have evicted the tenants from the property.

Dissenting from the view taken in Ram Kishan Das vs. Zahira 1968 (7) PLR De 11 Modi J., of the Rajasthan High Court, after extracting the principles laid down in Shah Mathuradas Maganlal and Co. Vs. Nagappa Shankarappa Malage and Others, with approval held:

It is thus obvious that in the present case as soon as the appellants, who were the lessees purchased the demised property their tenancy rights were, extinguished, for they merged with their ownership rights. Once the tenancy rights are extinguished they must be deemed to have disappeared for all times to come and the extinguished tenancy rights cannot, in my opinion, revive subsequently at any time even if the sale which extinguished the tenancy rights, is successfully pre-empted by a decree for preemption.

The learned counsel appearing for the 2nd defendant also placed reliance on the decision in Satar Mond vs. Saraf-ud-Din, AIR 1962 J & K. 79 wherein if was observed by Gopalakrishnan Nair J.,

A less estate is not merged in a greater if that if shall be kept alive. Where no intention is expressed, the intention may be presumed from the circumstances, as where the states are held by the same person in different rights, for example, ''one beneficiary and the other as trustee, or where it is for the advantage of the holder of the two estates that the less estate should be kept alive.''

(Halsbury''s Laws of England, 3rd Edn., Vol. 14 page 616, paragraph 1136).

In the very same judgment, the learned Judge later observed ;

Section 111 (d) of the Transfer of Property Act has enacted that a lease of immovable 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. The section does not in terms leave any scope for the intention of the parties to come into play. It has therefore been argued that the law in India is different from the English Law on the subject. I do not consider it necessary to go into this question in the present case, because the lease in question before me is admittedly a lease for agricultural purposes within the meaning of section 117 of the T.P. Act and as such none of the other provisions of Chapter V of that Act which includes section 111 applies to it. I am not aware of any notification by the State Government nor has any has been brought to my notice by which section 111 has been made applicable to agricultural leases. It follows that the question of merger in the present case has to be dealt with independently of section II (d) of the T.P. Act, that is to say outside the purview of the T.P. Act.

The decision relied upon by the learned counsel appearing for the 2nd defendant, far from being of any assistance to him, is against him. I must also observe that there is no recital in the sale deed obtained by the 2nd defendant that in case the sale deed becomes inoperative or unenforceable, his earlier rights of tenancy therein would revive. No evidence was either let in by the 2nd defendant in the execution proceeding that it was intended by the parties to the sale deed, though not expressed in the sale deed, that the earlier lease in favour of the 2nd defendant should be kept alive.

Lastly, it was contended on behalf of the 2nd defendant that he, being a statutory tenant falling within the meaning of the definition of ''tenant'', contained in Section 2 (ix) of the Act, was not liable to be evicted except in accordance with the provisions of Section 10 of the Act. Reliance was placed upon the decisions in The Calcutta Credit Corporation Ltd., and Another Vs. Happy Homes (P) Ltd., Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, 2 Damadilal and Others Vs. Parashram and Others, N. Sobhanadri & Others vs. Mohd. Abool Basheer And Another 1978 (1) AIRCJ 707 Oommini Ramankutty vs. Mrs. Mary Ponnammal Pereira & Others 1978 (2) AIRCJ 713 and Firm Sardarilal Vishwanath and Others Vs. Pritam Singh,

Section 2 (ix) of the Act may be usefully extracted hereunder.

In this Act, unless the context otherwise requires--

(ix) ''tenant'' means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter, of a deceased tenant who had been living with the tenant''s family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority.

The definition of ''Tenant'' is an inclusive or at enumerative one. It consists of three limbs. The first limb contains the primary definition of the term. The second limb makes an artificial extension of the definition to persons who may not otherwise be described or regarded as tenants. The third limb extends protection to persons continuing in possession after the termination of the tenancy in their favour. The Legislature has advisedly enlarged the scope of the definition by making it enumerative. The expression and includes is one of extension and not of restriction of the definition. It imports addition of something not covered by or comprised in the first limb. The expression is a common legislative device employed in definitions to convey that the enumeration which follows is really in addition to the grammatical or the natural meaning of the word defined.

It was argued on behalf of the 2nd defendant that he was a tenant within the meaning of the Act, he having answered the description of a person continuing in possession after the termination of the tenancy in his favour.

It is beyond doubt that the concept of ''tenant'' necessarily presumes the existence of a corresponding landlord. It, therefore, follows that where persons claiming to be tenants answering one or the other description of the definition of ''tenant'', there must be corresponding landlords. A landlord cannot be a tenant of himself. The 2nd defendant having become a full owner of the mulgi and acquired the status of a landlord of the mulgi by reason of the same of the same under the sale deed dated 13.10.1971, cannot, therefore, be regarded as a person continuing in possession after the termination of the tenancy in his favour. To put it differently, consequent upon the purchase of the mulgi, there was merger of the lesser estate of the 2nd defendant therein as a lessee thereof with the larger interest of re version therein acquired by him, as plainly laid down u/s 111 (d) of the Transfer of Property Act and the 2nd defendant ceased to be a tenant of the mulgi and his rights of tenancy therein were extinguished on and from the date of purchase of the same. In none of the cases cited and relief upon by the learned counsel appearing on behalf of the 2nd defendant, it was laid down that where a tenant of a premises became a full owner of the premises by reason of acquisition of the reversionary rights therein, thereby attaining the status of a landlord of the premises, his earlier rights of tenancy would spring back to life or would revive if, for any reason, the acquisition of the reversionary rights in the premises was found to be inoperative or unenforceable in law. Only the characteristics of and the rights of protection available to a statutory tenant were discussed and decided in these cases. As already stated, the 2nd defendant, having completely forfeited and lost his character of a tenant of the mulgi by reason of purchase of the same, no rights of a statutory tenant provided under the Act would be available to him. The impugned order made by the I Additional Judge, City Civil-Court, Hyderabad in Execution Petition No. 16 of 1978 does not, therefore, suffer from any error of jurisdiction.

It may be recalled that the Civil Miscellaneous Appeal is preferred against the order dismissing Execution Application No. 200 of 1978 filed on 30, 12, 1978 seeking a review of the draft sale deed filed by the plaintiff for approval by the execution Court. No objections to the draft sale deed having been preferred by the 2nd defendant for more than six months, the same was approved by the executing Court and a sale deed was executed by the executing Court in favour of the plaintiff and the same was also registered on 29.12. 1978. Execution Application No. 200 of 1978 filed on 30-12-1978, therefore, became infructuous. The Civil Miscellaneous Appeal is clearly misconceived. It was also rightly pointed out by the learned counsel appearing for the plaintiff that the impugned order made in Execution Application No. 200 of 1978 was not appealable.

In the result, the Civil Revision Petition and the Civil Miscellaneous Appeal fail and are dismissed, but without costs. Time for eviction of the second defendant is granted till two months from today.