JUDGMENT Oak, J.
1. The short point for consideration in this special appeal is whether tenancy rights are extinguished, when a tenant purchases his landlord's property.
2. Reoti Saran, plaintiff filed a suit against Hargu Lal defendant on these allegations. The dispute relates to certain shops. On 2-7-1942 the plaintiff and his brothers sold the shops in dispute to Hargulal, defendant. The same day the parties entered into a written agreement, under which Hargulal promised to reconvey the property to the vendors on condition that the vendors paid the price within a period of eight years. In pursuance of that agreement dated 2-7-1942, the plaintiff and his brothers paid up the price on 21-12-46, and repurchased the property from Hargu Lal defendant. There was partition between the plaintiff and his brothers. As a consequence of that partition, the shops in dispute came to the share of Reoti Saran plaintiff. Although the property was purchased from the defendant, the defendant declined to vacate the shops. The plaintiff, therefore, brought the suit against Hargulal defendant to recover possession over the shops. The plaintiff also claimed Rs. 400 as damages for wrongful occupation from the date of repurchase to the date of the institution of the suit.
3. The defendant pleaded that he was an old tenant of the shops. The tenancy subsisted in spite of the transactions of 1942 and 1946. The defendant also pleaded payment of a certain sum to the plaintiff's brother Parmeshwari Dayal. The learned Munsif, Ghaziabad accepted the defence that Hargulal defendant continued to be the tenant of the shops. Payment to Parmeshwari Dayal was also accepted by the trial Court. In the result, the trial Court merely passed a decree for a sum of Rs. 145/- as arrears of rent. The relief for possession was refused.
4. The plaintiff went up in appeal, and succeeded. The learned second civil judge, Meerut held (hat as a consequence of merger of tenancy rights with the proprietary rights, the defendant could no longer be described as a tenant of the shops. The Court further held that payment to Parmeshwari Dayal could not be recognized. In the result, the learned Civil Judge passed in plaintiff's favour a decree for possession for recovery of a sum of Rs. 265/- as damages.
5. The defendant went up in second appeal, A learned single Judge of this Court disagreed with the lower appellate Court on the question of merger of tenancy rights. The learned single Judge held that, on the facts of the present case, there was no merger of tenancy rights, and the defendant continued to be tenant of the shops after 1946. The learned single Judge, therefore, set aside the decree for the defendant's ejectment, but maintained the decree for arrears of rent. Reoti Saran plaintiff has come up in special appeal.
6. It has been found that the defendant occupied the shops as a tenant before July 1942. The question for consideration is whether Hargu Lal's tenancy rights were extinguished, when he purchased the shops on 2-7-42. The plaintiff relied upon Section 111 of the Transfer Of Property Act. Section 111, Transfer of Property Act deals with tetermination of lease, and runs thus:
"a lease of immovable property determines:
(a)..........................
(b)............................
(c)..................,.........
(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 to the same right ........"
7. The question for consideration is whether Hargulal's tenancy rights were extinguished on 2-7-1942 under Section 111(d), Transfer of Property Act. Mr. Jagdish Swamp, appearing for the defendant-respondent, contended that the expression in the same right appearing in Clause (d) of Section 111, Transfer of Property Act creates some difficulty. It seems to us that the expression in the same right conveys the idea that, the two rights mentioned in Clause (d) ought to be vested in the same person or persons in the same capacity. If a person is a lessor in one capacity, and lessee in some other capacity, Clause (d) would not come into play. In the present case Hargu Lal defendant was lessor and lessee on 2-7-42 in his individual capacity.
There is, therefore no difficulty in bringing the case under Section 111(d), Transfer of Property Act.
8. In Kallu v. Diwan, ILR 24 All 487, it was held that, the fact of a tenant's taking a mortgage of land comprised in his holding from his landlord does not of itself extinguish the tenancy by merging the rights of a tenant in those of the mortgagee. The effect of such a mortgage on the tenant's rights would be merely that they would be in abeyance. When the landlord redeemed the mortgage, the parties would revert to their former position, and the landlord would not be entitled to get possession of the land except by ejecting the tenant in due course of law.
9. In Kallu's case, ILR 24 All 487 the Court had to consider whether the Common law doctrine of merger applied in the case of a mortgage. In the present case we have to give effect to the statutory provision contained in Section 111(d), Transfer of Property Act. Section 58, Transfer of Property Act deals with a mortgage by conditional sale. Mr. Jagdish Swarup conceded that, in view of the proviso to Clause (c) of Section 58, Transfer of Property Act, the present transaction cannot be treated as a mortgage by conditional sale. The transaction in question was a sale with a condition for re-purchase Considerations relating to mortgages do not arise in such a case.
10. In Badri Narain v. Rameshwar Dayal, AIR 1951 SC 186 it was pointed out that, if the lessor purchases the lessee's interest, the lease is extinguished, as the same man cannot at the same time be both a landlord and a tenant.
11. The learned Single Judge observed: "It is difficult to accept the contention that the defendant or even the plaintiff intended that there should be a merger of the rights because of the sale by the plaintiff to the defendant." When the transfer was made under a sale deed, and the case is governed by Section 111(d), Transfer of Property Act, the question of intention of parties hardly arises. We have to decide whether, on the facts of the case, the lease determined under Section 111(d), Transfer of Property Act.
12. Before July 1942, the plaintiff and his brothers were proprietors of the shops; and Hargu Lal vvas the tenant of the shops. On 2-7-1942 Hargu Lal purchased the proprietary right in the shops under the sale deed (Ex. 1) Since the interests of the lessor and the lessee in the whole property became vested at the same time in Hargu Lal, the principle laid down in Section 111(d), Transfer of Property Act fully applies. Upon execution of the sale deed (Ex 1), Hargu Lal's former tenancy rights were extinguished.
13. Mr Jagdish Swarup contended that the situation has materially altered as a result of the deed of agreement (Ex. 2) dated 2-7-1942. It was contended that Hargu Lal did not acquire an indefeasible right in the property. So, Section 111(d), Transfer of Property Act could not be applied to the present case It is true that Hargulal promised to reconvey the property on receiving the price within eight years. But the agreement did not create any defect in Hargu Lal's title to the property. Between 1942 and 1946 Hargu Lal remained the full owner of the property. We were taken through the sale deed (Ex. 1) and the agreement (Ex. 2). There was no provision in either of the two documents to keep Hargu Lal's tenancy rights alive. It does not, therefore, appear, that, the execution of the agreement (Ex. 2) made any difference as regards applicability of Section 111(d), Transfer of Property Act. On 2-7-1942 Hargu Lal's tenancy rights in the shops were extinguished. The learned civil Judge found that there was no fresh contract of tenancy after 21-12-1946 (date of re-purchase). The result is that after 21-12-46 Hargulal could not claim any tenancy rights in the shops. The defendant's occupation of the shops after 21-12-46 was wrongful. The learned Civil Judge was right in decreeing the plaintiff's claim for possession on the footing that, the defendant's possession was wrongful.
14. The Special Appeal is allowed with costs. We set aside the order of the-learned single Judge, and restore me decree passed by the learned Second Civil Judge, Meerut.