The central legal point established in the judgment is that the lack of proof of surrender of tenancy rights and the absence of recitals regarding surrender in the mortgage deed led to the revival of tenancy rights upon redemption.

Hemant Gupta, J.

1. This is plaintiffs appeal arising out of a suit for possession by way of redemption of a shop. The plaintiff has purchased the shop in dispute from Raunak Ram son of Bishna Mal Aggarwal vide registered sale deed. The shop was mortgaged by the plaintiff with the defendants vide registered mortgage deed dated 15.4.1957 for Rs. 1500/- with possession. The plaintiff sought possession of the shop by way of redemption. However, the defendants admitted mortgage but further stated that they were already in possession of the disputed shop as tenants and thus, the plaintiff can get the shop redeemed but the possession will remain with the defendants as tenant.

2. The learned trial court decreed the suit holding that the defendants were tenants under the plaintiff before the aforesaid shop was mortgaged but they have surrendered their tenancy rights in favour of the mortgagor at the time of execution of the registered mortgage deed and thus, the tenancy rights will not revive. However, the first Appellate Court reversed the finding recorded by the learned trial Court holding that there is no specific plea regarding surrender of tenancy and thus, the plaintiff cannot be allowed to travel beyond his pleading. Consequently, reversed the finding recorded by the learned trial court but modified the decree to the extent that the plaintiff was not held entitled to physical possession of the shop on redemption.

3. I have heard the learned counsel for the parties and with their assistance gone through the records of the case.

4. A perusal of the plaint would show that the plaintiff has not made any pleading regarding the tenancy of the defendants in the shop in dispute. It was during the course of trial, the plaintiff came forward to allege that it was not the defendants who were tenant but Kishan Buttonwala (Shoe seller) when Des Raj appeared as PW5. A perusal of the mortgage deed would show that the recital in the mortgage deed are to the effect that the possession of the shop has been given to the mortgagee at the time of the execution of the deed and also liberty was given to the mortgagee to induct tenant. On the basis of such recitals in the mortgage deed it was submitted by the appellant that the possession has been given on the date of execution of the mortgage deed as mortgagee and further right has been given to induct tenant. It is, thus, evident that the tenancy rights were surrendered only then the question of handing over possession as mortgagee would arise and further right to lease out the premises.

5. Learned counsel for the appellant also placed reliance on Shah Mathuradas Maganlal and Co. v. Nagapipa Shankarappa Malaga and Ors. AIR 1976 Supreme Court 1565, to contend that the learned trial court was right in law in returning a finding that the defendants have surrendered the tenancy rights. In the said case, the Honble Supreme Court was considering a case where the tenancy in favour of the mortgagee was up to 6.11.1953. The deed of mortgage was executed on 21.5,1953 but the period of mortgage of 10 years was to commencence only from 7.11.1953, It was in these circumstances, it was held that since the mortgage period is to commence after the expiry of tenancy period, therefore, it is a case of surrender of tenancy rights. The Honble Supreme Court approved the view expressed by Boiribay High Court in Narayan v. Ramachandra, 1963(65) Bom LR 449, wherein it was held that for a merger to arise as provided under Section 111 of the Transfer of Property Act, a lesser estate and a higher estate should merge in one person at one and the same time and in the same right, and no interest in the property should remain outside. In the case of lease the estate that is in the lessor is a reversion. In the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. Therefore, there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a hi