Beri, J.—This is a defendants second appeal directed against the judgment and decree dated 14th April, 1953, passed by the Civil Judge, Dholpur in a suit for possession and mesne profits.

2. The controversy relates to a shop situate in Mohalla Talaia, Dashera Road Kothi, Dholpur. Roshanlal, the defendant appellant, took this shop on rent on 25th June, 1950, on a rental of Rs. 10/- per month from Mst. Bashiran and others. On 8th February, 1951, Mst. Bashiran and others mortgaged this shop with Roshanlal. According to the terms of this mortgage-deed no interest was to be paid by the mortgagors to the mortgagee Roshanlal and he was no longer required to pay any rent of the shop. It was further stipulated that when half the mortgage money was paid the mortgagee was to pay Rs. 5/- per month as rent and when the full mortgage amount Was repaid the mortgagee was to restart paying Rs.10/- per month as rent. On 25th September, 19 54, Mst. Bashiran redeemed the shop and mortgaged this shop with some other property with Babulal and Rambharose for the sum of Rs. 3,500/-. Baboolal and another instituted a suit for the possession of the shop which was in possession of Roshanlal and for mesne profits on several grounds. This suit was resisted by Roshanlal. The Munsiff Dholpur who tried the suit found that there was no agreement between Roshanlal on the one hand and Baboolal and Rambharose on the other to the effect that the former will deliver possession of the shop to the latter, that there was no implied surrender on the part of Roshanlal and dismissed the plaintiffs suit. Baboolal and another preferred an appeal and the learned Civil Judge concurred with the finding of the trial court that no independent assurance was given by Roshanlal to vacate the shop in dispute but he held that inasmuch as Roshanlal became the mortgagee of the shop in suit by operation of law there was an extinction of the original lease and it was a case covered by sec. 111(d) of the Transfer of Property Act. Roshanlal has now come up in second appeal.

3. The only point urged before me and which calls for consideration is whether on account of the mortgage-deed dated 8th February, 1951, between Mst. Bashiran and others on the one hand and Roshanlal on the other the relationship between them as of lessor and lessee came to an end and the lease stood determined. On behalf of the appellant it is contended that Roshanlal did not extinguish the tenancy rights residing in him by becoming a mortgagee. The tenancy rights remained in abeyance and revived when the land lady Mst. Bashiran redeemed the mortgage from Roshanlal. He placed reliance on Kallu and another Vs. Diwan(l), Parasram Vs. Dharamchand (2), Jyotish Thakur Vs. Tarakant Jha(3) and Dhulilal Vs. Pannalal(4). The learned counsel for the respondent however placed reliance on the provisions of sec. 111(d) of the Transfer of Property Act and argued that the interest of the lessee and the lessor in the entire shop became vested in Roshanlal and the lease came to be determined on execution of the mortgage by the land lady. Roshanlal became a trespasser and the subsequent mortgagee, therefore entitled to possession and mesne profits. He Placed reliance on Velu Vs. Lekshmi (5), Meenakshi Amma Vs. Kizhakki Valath Narayan (6), Abdul Gafoor Vs. Lala Kunj Behari Lal (7), Konijeti Venkayya Vs. Thammana Peda Venkata Subbarao(8) and Khan Bahadur Mehrban Khan Vs. Makhna(9).

4. The material portion of sec. 111 of the Transfer of Property Act reads as follows:—

"A lease of immovable property determines-—

(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 in the same right.

This provision of law contains the doctrine of merger as known in the English Common Law. In equity, however, merger was regarded as a question of intention between the parties. It was possible in equity to keep two estates separate and alive if the party so intended. The English Law of Prop

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