BHOORI LAL Vs. GEHRI LAL

JUDGEMENT

(1.) I have before me two second appeals of identical nature filed by an unsuccessful defendant in an action for realisation of rent of a shop. As the fate of these appeals falls to be determined on a common question of law, they can conveniently he disposed of together.

(2.) GEHRILAL and Inderlal were the owners of the shop in dispute. On 31-7-41 they mortgaged it with possession for an amount of Rs. 2,699 with one Ismail and sadiq Hussain. The latter gave it on lease to the mortgagors Gehrilal and Inderlal on a monthly rent Rs. 11 on 16-8-44. Gehrilal and Inderlal in turn sublet it on 3-449 to the defendant Bhoori Lal on a monthly rent of Rs. 60. On 12-9-59 mortgagors Ismail and Sadiq Hussain sub-mortgaged it with Bhoori Lal the defendant who was already holding it on sub-lease from Gehri Lal and Inderlal. On 12-1-59. Bhoorilal filed a suit for the recovery of the arrears of rent amounting to rs. 2,160 from Gehrilal in the Court of the Additional Civil Judge, Udaipur. Subsequent to that he filed another suit for the rent that had fallen in arrears after filing of the first suit. Bhoori Lal in resisting the suits raised several pleas one of which was that as a result of the sub-mortgage in his favour the liability of bhoorilal to pay any rent to Gehrilal and Inder Lal came to an end on the principle of merger enshrined in Section 111 (d) of the Transfer of Property Act. The first court decreed the suits. The defendant then filed separate appeals in the Court of the District Judge, Udaipur, but was not successful Aggrieved of the judgment and decree of the learned District Judge the defendant has lodged the two second appeals in this Court.

(3.) AS observed at the outset the only point arising for consideration is about the applicability of the doctrine of merger in the present case. Relevant portion of section 111 of the Transfer of Property Act runs as under: