Surrender of building did not result in merger as per S.111(d) of the Transfer of Property Act. Statutory tenant has rights under tenancy legislation even after termination of contractual tenancy.

Plaintiff in O.S.817/84 on the file of the Principal Munsiffs Court, Alleppey is the appellant in the second appeal. Plaintiff filed the suit for injunction to restrain the first defendant from executing the order of the Rent Controller passed in R.C.P. 78/77. The suit was dismissed by the trial court which was later confirmed in appeal.

2. The facts in brief are as follows. The predecessor-in-interest of the plaintiff let out the plaint schedule building to the first defendant on 6-10-70 on a monthly rent of Rs. 75/- as per Ext. A3 rent deed. The tenancy was for a period of 5 months. The first defendant sublet the plaint schedule building to the 2nd defendant, who, in turn, sublet the building to the 3rd defendant. Appellant filed R.C.P. 11/84 for eviction of the tenants. Prior to this defendants 1 and 2 had filed R.C.P. 78/77 to evict the 3rd defendant from the plaint schedule building. R.C.P. 78/77 was allowed and the 3rd defendant was directed to surrender possession of the building. During the pendency of R.C.P. 11/84 that is, R.C.P. filed by the plaintiff, the 3rd defendant, who was in possession of the building surrendered possession of the same to the plaintiff on 6-11-84. Thereupon the plaintiff filed a memo before the Rent Controller stating that R.C.P. 11/84 is not pressed and accordingly R.C.P. 11/84 was dismissed. The plaintiff alleges that defendants 1 and 2 are trying to execute the order they obtained in R.C.P. 78/77 by dispossessing the plaintiff, who got possession of the building from the 3rd defendant.

3. Both the courts have found that there was no surrender of the building by the 3rd defendant and that the building was in the possession of the 3rd defendant and the alleged surrender is not true.

4. The learned counsel for the appellant contends that the finding is erroneous since it is solely based on the commission report, which says that some of the articles belonging to the 3rd defendant are still in the plaint schedule building. According to the plaintiff-appellant, the possession of the building was obtained by him as early as on 6-11-84 and the articles, if any, of the 3rd defendant found in the building are kept with the permission of the plaintiff. In view of the definite contention of the 3rd defendant that he had surrendered the building to the plaintiff, I do not think that the courts below were justified in holding that the plaintiff was not in possession of the building. The evidence on this aspect was not correctly appreciated and even though it is a finding of fact I am constrained to reverse that finding.

5. The central point that arises in this case is whether there was any merger as contemplated under S. 111(d) of the Transfer of Property Act, in view of the surrender of the building by the 3rd defendant. It is argued on behalf of the appellant that the tenancy rights, if any of the defendants land 2 merged with the larger proprietory rights of the plaintiff when their sub lessee surrendered the building to the plaintiff. I do not think that the contentions urged by the appellant are true.

6. The short question to be considered is by the surrender of the building by the sub-lessee whether the tenancy between the lessor and the lessee would come to an end. The learned counsel for the appellant contended that by virtue of S.111 (d) of the T.P. Act there is a merger of the lesser fight with the larger right of the lessor's right. The relevant portion of S.111 (d) of the T.P. Act is as follows:

"111. A lease of immoveable property determines

(a)

(b)

(c)

(d) in 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".

When a leasehold and a reversion coincide there is a merger of a lesser estate in the greater. Admittedly leasehold is the lesser estate, for it is carved out of the estate of the owner, which is the reversion. The lesser estate is merged, that is, sunk or drowned in the greater. But in the insta