( 1 ) THIS appeal by the defendant in OS. No. 167 of 1964 on the file of the court of the Munsiff, Shorapur, is directed against the judgment and decree of the Civil Judge at Gulbarga in RA. 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 respondent, the appellant refused to complete the transaction in fulfilment of the obligations imposed by the agreement in question, inspite 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 to 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 by 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?" after trial on the above issues, it passed a decree in the following terms:" The plaintiff shall be put in possession of the land bearing No. 1-24-40 (old No. 1955) if the defendant fails to: (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 pay the balance of consideration and damages as ordered then the plaintiff 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. "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. 2150 OS. in equivalent IG. 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. 2150 in Court which will have to be inquired into separately under Or. 20, R. 12 CPC. "

( 3 ) AGAINST this judgment and decree the defendant has appealed. 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 plaintiff 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. "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 later 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

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