There can be no merger of a lease and a mortgage, and the defendant was entitled to fixity of tenure under S.106 of the Kerala Land Reforms Act.

Plaintiff is the appellant. The suit is for redemption of a mortgage in respect of the plaint schedule property evidenced by Ext.A1 dated 8-7-1965. The above mortgage was executed by the plaintiffs father Pandaram Pillai in favour of one Jayakrishnan Nair. The father of the plaintiff Pandaram Pillai executed a gift Ext.A2 dated 17-3-1972 in favour of the plaintiff, his son in respect of the plaint schedule property. It is stated in -the plaint that the defendant became entitled to the mortgage right by assignment and accordingly the suit is filed for redemption of the mortgage and recovery of possession of the property.

2. Defendant filed a written statement admitting that the property belonged to the plaintiff's father. He also admitted the mortgage deed in favour of Jayakrishnan Nair. But the case of the defendant is that Jayakrishnan Nair did not get possession of the property under Ext.A1 mortgage deed but under a lease transaction. Defendant contended that at the time of Ext.A1 mortgage the property was outstanding on a lease executed by the plaintiffs father and the mortgagee in possession to one V.S. Krishna Pillai under Ext.B1 registered document dated 24-9-1952. That lease was a commercial lease for the purpose of establishing a petrol bunk by Krishna Pillai. In pursuance to Ext.B1 lease deed he constructed a petrol bunk and was conducting the same. Defendant further contended that he came into possession of the property by getting an assignment of the above leasehold right and that he is not in possession under the mortgage right. He claimed fixity of tenure under S.106 of the Kerala Land Reforms Act alleging that there was a commercial lease in favour of his predecessor who had constructed buildings in the property and as such he is entitled to fixity of tenure.

3. As the defendant claimed protection under S.106 of the Kerala Land Reforms Act the trial court referred the matter to the Land Tribunal. The Land Tribunal returned the finding holding that the defendant is entitled to protection given under S.106 of the Kerala Land Reforms Act. Accepting that finding the trial court dismissed the suit against which plaintiff filed an appeal before the Lower Appellate Court. Before the Lower Appellate Court the plaintiff contended that the mortgagee Jayakrishnan Nair, got an assignment of the leasehold right also under Ext.B2 assignment deed dated 27-3-1969 and accordingly there is a merger of the two rights and the possession of Jayakrishnan Nair can be said to be only that a mortgagee and as such the plaintiff is entitled to redeem and recover possession. The Lower Appellate Court did not accept the contention of the plaintiff on the ground that there was no pleading that there was a merger of the mortgage right and leasehold right in favour of Jayakrishnan Nair. Accordingly the appeal was dismissed and the decree of the trial court was confirmed. Now the plaintiff has come up in appeal.

4. As stated earlier the Lower Appellate Court dismissed the appeal mainly on the ground that there was no pleading regarding the merger of the mortgage right and the leasehold right. Though the reasoning given by the Appellate Court is not proper in the circumstances of the case, on going through the documents in the case I am satisfied that the ultimate decree passed by the Courts below are correct. In order to decide the controversy in the case it is necessary to state the facts of the case in detail.

5. The properly belonged to the predecessor of the plaintiff one Pandaram Pillai. The property was outstanding on a mortgage with a mortgagee. While so Pandaram Pillai and the mortgagee together executed Ext.B1 a commercial lease deed dated 24-11-1952 in favour of one V.S. Krishna Pillai for conducting a petrol bunk and for other business purposes by constructing necessary buildings. Accordingly, V.S. Krishna Pillai constructed buildings and was conducting a petrol bunk and other business concerns in the plaint properly. If Ext.B