| in any event it was not the case of the plaintiff that defendant l was a tenant of the suit properties and hc surrendered his possession of the suit properties either expressly or impliedly and the possession so obtained by the plaintiff was re delivered to defendant l in pursuance of the mortgages by conditional sale executed in his favour. what is enunciated in section 111 d of the t p act can not be doubted is the doctrine of merger. lease hold held by a tenant or a lessee being a lesser estate and the right of reversion of the landlord lessor being a higher estate the lessee 's lease hold right in respect of the property merges in reversion when that right of reversion i e the landlord 's lessor 's right of reversion comes to the tenant or lessee which happens when the landlord having a right to sell his reversion to the tenant holding the lease hold sells the whole of it to the tenant lessee. when the landlord mortgages the lease hold property of the tenant to the tenant himself he does not part with the right of reversion which he has in respect of that property. if that be so merger of lease hold estate in reversion can not arise inasmuch as there can not be any inconsistency or incompatibility in one person being the tenant and also the mortgagee of the same property for in that event instead of the tenant paying rent to the landlord he may adjust it against the amount claimable by him as a mortgagee from the landlord. in the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. therefore there can not be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. moreover if a lessee of a property takes a mortgage of the sum property from the landlord it would be unreasonable to attribute to a tenant the intention to surrender the tenancy and to invoke the sophisticated doctrine of implied surrender as has been held by the gujarat high court in patel atmaram nathudas v babubhai keshavlal 1974 indlaw guj 88. shah mathuradas case 1976 indlaw sc 400 supra was that where the respondent had executed a mortgage in favour of the appellant respecting a premises of which he was a tenant. the court dealing with the said question said that all depends upon whether there was an implied surrender of the lessee 's rights when the usufructuary mortgage was executed in his favour by the lessor mortgagor and only if an implied surrender of lossee 's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. hence the lease hold of a tenant lessee in a property does not merge in mortgage security of that property even if it is given to him by the landlord lessor on a mortgage by conditional sale as would debar the tenant from desisting the suit of the landlord mortgagor for recovery of possession of such property by obtaining decree for redemption of the mortgage. section 70 of the bt al act to which we have adverted already imposes a duty on the mamlatdar to decide whether a person is an agriculturist or a tenant or a protected tenant or a permanent tenant when such person claims to be so under that act. further section 85 of the bt al act to which also we have already adverted in unequivocal terms says that in deciding any issue which is required to be decided by the mamlatdar under the bt al act no civil court has jurisdiction to decide it. furthermore section 85a as it stood prior to its amendment by gujarat amendment act no 5 in the year 1973 and as stands thereafter requires that if any suit instituted in civil court involves the question of tenancy of present or pastas the case may be the same being required to be decided or dealt with by an authority competent under the bt al act the civil court has to stay the suit and refer the issue to such competent authority for determination and after receiving the decision thereon to dispose of the suit in accordance with such decision. thus the provisions in the bt al act give no scope or room to think that the plea of tenancy if raised by the defendants in a suit in a civil court the same could be decided by the civil court. |