KAN SINGH, J.—The second appeal before me raises the question whether on the execution of a usufructuary mortgage by the landlord in favour of a tenant the relationship of landlord and tenant will come to an end by virtue of express or implied surrender of the tenancy rights or it would be merely put in abeyance so that on the redemption of the mortgage by the landlord mortgagor the tenant mortgagee could yet claim to remain in possession by virtue of the Rent Control legislation. 2. It is common ground between the parties that in respect of the suit shop situated at Nimbahera the defendant was a tenant of the plaintiff-respondent. The tenancy commenced some 30 years before the filing of the suit. However, on 25-10-57 the mortgage deed, Ex. 1 on record, was executed by the landlord in favour of the tenant for Rs. 4,000 -. It was, inter alia, agreed that the mortgage would be redeemable after 7 years and that no interest would be chargeable for the amount advanced by the tenant to the landlord and that likewise no rent would be payable by the tenant to the landlord mortgagor. After the expiry of 7 years the mortgagor served a notice on the mortgagee demanding of him to take the mortgage amount and redeem the property. It was also stated in the notice that the suit shop was required by the mortgagor for his bona fide personal necessity. As the mortgagee did not agree to redeem the property the suit for redemption was filed by the mortgagor Hibatullah Bhai in the court of the Civil Judge, Chittorgarh. It was claimed that the plaintiff was entitled to have vacant possession of the suit shop. 3. The suit was contested by the defendant-appellant. It was averred by him that the tenancy was intended to continue inspite of the mortgage and it was agreed that even on the redemption of the mortgage the defendant would continue in possession of the shop as a tenant. Protection of sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter to be referred as the "Act", was claimed. The defendant thus took the stand that on account of the understanding between the parties the relationship of landlord and tenant that was put in abeyance during the currency of the mortgage revived on its redemption. 4. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter to be referred as the "Act", was claimed. The defendant thus took the stand that on account of the understanding between the parties the relationship of landlord and tenant that was put in abeyance during the currency of the mortgage revived on its redemption. 4. The suit went to trial only on one issue namely, whether the plaintiff was entitled to have vacant possession of the suit shop on the redemption of the mortgage ? The plaintiff examined himself as P. W. 1 and further relied on the mortgage deed Ex. 1 and the notice Ex. 2 served by him on the defendant. He further relied on a letter Ex. 6 which was put to the defendant in his cross-examination. I will have occasion to refer to the terms of that letter at the appropriate place in the judgment. To continue the narration, in rebuttal one of the defendant Sagarmal came in evidence and he produced D. W. 2 Nanalal in his support. 5. The learned Munsif, Nimbahera, who eventually tried the case as a result of the transfer of the case to his file, held that though the plaintiff was entitled to redeem his shop, he cannot get the actual physical possession of the same. The learned Munsif held that the relationship of landlord and tenant was not put an end to and after the redemption of the mortgage the defendant would be regarded as a statutory tenant within the meaning of the Act and could consequently claim protection of its provisions and was thus entitled to remain in possession. The learned Munsif, therefore, dismissed the suit. 6. Aggrieved by the judgment and decree of the learned Munsif the plaintiff went up in appeal to the court of the District Judge, Partabgarh. The learned District Judge was of the view that the relationship of landlord and tenant had come to an end when the landlord made a usufructuary mortgage of the suit shop in favour of the tenant. In that event the tenant, according to the learned District Judge, will be taken to have surrendered his tenancy rights with the result that he cannot claim the protection of the provisions of sec. 13 of the Act. In that event the tenant, according to the learned District Judge, will be taken to have surrendered his tenancy rights with the result that he cannot claim the protection of the provisions of sec. 13 of the Act. In the result, the learned District Judge allowed the appeal, reversed the judgment and decree of the learned Munsif and decreed the plaintiffs suit ordering that on the payment of the mortgage amount by the plaintiff he shall be entitled to get actual possession of the suit property from the defendant. 7. It is in these circumstances that the defendant has come up in second appeal to this Court. 8. Learned counsel for the defendant-appellant contended that in the circumstances of the case it cannot be said that the defendant-tenant had made a surrender of his tenancy rights by accepting the mortgage in his favour. He maintained that there was an agreement between the parties that even on redemption of the mortgage the tenant shall continue to remain in possession of the suit shop and the court below was in error in ignoring the same. Then learned counsel argued that the plaintiff had not pleaded any case of surrender of tenancy rights by the defendant in his plaint; on the contrary, he pleaded bona fide personal necessity evicting the defendant. In the alternative, learned counsel submitted that even if there be an implied surrender, for express surrender was not there, then such a surrender cannot be enforced by the Court as the tenant cannot contract out of the protective provisions under sec. 13 of the Act. Learned counsel took the position that in the present case the relationship of landlord and tenant can only be said to have been suspended and on the termination of the mortgage that relationship would revive with full force and tenant could legitimately claim the protection of sec. 13 of the Act; being a statutory tenant. Learned counsel invited my attention to a number of cases, such as, Kallu vs. Diwan(l), Lachhmandas vs. Heeralal(2), Jagmohan Ahir vs. Ram Kishan Misir(3), Boddana Ramudu vs. Sanyasi Naidu(4), C. Kuriminaidu vs. K. Padmanabham(5) V. B. Raju vs. K. Avatharam(6) and Kashi vs. Durga(7). He felt that a case of this Court reported as Dhulilal vs. Pannalal(8) had weighed with the court below and, therefore, he tried to distinguish that case on facts. 9. He felt that a case of this Court reported as Dhulilal vs. Pannalal(8) had weighed with the court below and, therefore, he tried to distinguish that case on facts. 9. Learned counsel for the respondent, on the other hand, tried to support the judgment of the learned District Judge. He referred me to Sardarilal vs. Ramlal(9), Velu vs. Lekshmi(lO), Meenakshi Amma vs. K. V. Narayani(11), Ram Rao vs. Pahumal(12), G. Valia Raja vs. T.Vareed(13), Kamlakar & Co. vs. Gulam Shafi(14), Lala vs. Bhagwan Dass(15) and Sachalmal Parasram vs. Ratanbai(16). 10. Sec. 111 of the Transfer of Property Act deals with determination of leases. It, inter alia, lays down that a lease of immovable property determines 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 or by express or by implied surrender. When a lease is created in favour of a party by the owner of the property then a leasehold interest is carved out of the bundle of rights constituting ownership in the property & then the reversion remains with the lessor and the leasehold goes to the lessee. When the lessor estate and the reversion both come to be vested in the same person either by virtue of transfers or by operation of any law then there would be merger and then with such a merger the leasehold will stand extinguished or determined as contemplated by sec. 111(d). 11. We have to see here whether the creation of a usufructuary mortgage in the property in favour of the lessee i.e. the tenant, would result in such a merger. The earliest Indian Case to which my attention was invited is ILR 24 Allahabad 487. It was a case relating to an agricultural tenancy. The tenant had taken a mortgage of the land comprised in his holding from his landlord. The landlord redeemed the mortgage and the question came to be considered in the case whether the parties would then revert to their former position and the landlord would not be entitled to get possession of the land except by ejecting the tenant in due course of law. The learned Judges referred to an earlier unreported judgment delivered by Burkitt J. It is reproduced as a foot note in the report of the case Kallu vs. Diwan(l). The learned Judges referred to an earlier unreported judgment delivered by Burkitt J. It is reproduced as a foot note in the report of the case Kallu vs. Diwan(l). The learned Additional Judge whose decision came to be considered by Burkitt J. had held that there was merger of the tenancy rights when the mortgage of the holding was created. Burkitt J. observed : - "I entirely dissent from the novel and extraordinary doctrine laid down by the Additional Judge that, if an occupancy tenant lends money to his landlord and takes from his landlord a mortgage of an area of land, which inculdes his own occupancy holding, he thereupon ceases to be an occupancy tenant under some novel doctrine of merger, apparently invented for this case. If this doctrine were affirmed, the result would be that the occupancy tenant referred to would be in a much worse position after his possession as mortgagee had ceased then before, For according to the Additional Judge he would have ceased to be an occupancy tenant. I cannot assent to this doctrine. I see no reason why in such a case the occupancy tenure should be forfeited, and it is the first time I have heard such a doctrine mooted." In Kallus case (1), Blair J. observed : - "In our opinion the effect of the mortgage was not to destroy the tenancy, but only to suspend the obligation of the tenant to pay rent to the landlord while the mortgage subsisted. We entirely agree with the ruling of our brother Burkitt in second appeal No. 122 of 1898, upon which judgment was delivered on the 20th, December, 1898, a case which, we may remark, would properly find place in the Indian Law Reports, that no such extinction of tenancy or merger in effect took place on the grant to an occupancy tenant of a usufructuary mortgage by his landlord. In our opinion the ruling in that case is absolutely sound law and governs cases of tenancy of a less durable character than an occupancy right." 12. In our opinion the ruling in that case is absolutely sound law and governs cases of tenancy of a less durable character than an occupancy right." 12. In Jagmohan Ahir vs. Ram Kishan Misir (3) the learned Judges laid down - "Where a landlord executes in favour of his tenant, a usufructuary mortgage of the plot in possession of the tenant, the rights of the tenant as a tenant and as a mortgagee do not merge, and if the tenant subsequently sells his rights as a possessory mortgagee, the transferee bringing a suit on basis of the sale, is not entitled to eject the tenant but is merely entitled to possession as a usufructuary mortgagee, i.e., to realise rents from the tenant; he cannot claim actual cultivatory possession of the plot." 13. In Lachhman Das vs. Heeralal(2) the doctrine of merger underlying sec. 111 (d) of the Transfer of Property Act was again examined and the previous Allahabad cases as also some English cases and cases of the other High Courts were reviewed. It was pointed out that though under the English Law the mortgagee becomes the absolute holder of the estate and the mortgagor retains no legal interest but only an equity of redemption. Under the Indian Law the mortgagor continues to remain the legal owner of the property. In this light the learned Judges held that the doctrine of merger was not applicable where the lessee becomes the usufructuary mortgage of the property. It was further pointed out that there was no inconsistency or incompatibility in one person being the lessee and usufructuary mortgagee of the same property at the same time for his obligations as a lessee would remain suspended during the subsistence of the mortgage. The principle of suspension which was discussed in Burtons case and particularly the observations of Lord Chief Justice Tindal were relied on. The observations of Lord Chief Justice Tindal were as follows : — "Suspension, which lis a partial extinguishment, takes place only where the rent, or other profit a prendre issuing out of the land, comes to him who has possession of the same land for a time only. The observations of Lord Chief Justice Tindal were as follows : — "Suspension, which lis a partial extinguishment, takes place only where the rent, or other profit a prendre issuing out of the land, comes to him who has possession of the same land for a time only. The rent sought to be recovered in this action is that which is reserved under Meeks underlease; and if either Bates or Langden had purchased the term granted by Meeks under-lease, the rent in that case would have been suspended during the continuance of such underlease; for in that case there would have been an union of the rent, and of the land itself, in the same person. So, if this action had been brought for the rent reserved under Bates lease, there might have been a question, whether his rent was not suspended until the term granted by him to Langden had ceased." 14. The Madras and Andhra Pradesh High Courts have fallen in line with the Allahabad High Court vide AIR 1964 A. P. 539 and AIR 1941 Madras 97. 15. In Dhulilal vs. Pannalal(8), Modi J. had to deal with the case where there was a prior lease in favour of a person who subsequently came to have the usufructuary mortgage of the same property. According to Modi J., the first relationship of landlord and a tenant was incompatible with the subsequent relationship of a mortgagee and a mortgagor which became operative. The learned Judge, inter alia, observed : — "That the two relationships, namely, of landlord and tenant and of mortgagor and mortgagee could not stand side by side or co-exist and therefore the earlier relationship of landlord and tenant must be held to have been impliedly surrendered when the subsequent one of mortgagor and mortgagee arose for operation. This was not a case where the tenant had any permanent right of occupation under the terms of the tenancy. Indeed his right of tenancy was terminable by mere demand for possession, and, therefore, this case did not fall within the exceptional type." The Allahabad cases as also A.I.R. 1957 Madras 212 and A.I.R. 1961 Kerala 293 were dissented from. Modi J. laid down the following test for seeing whether there would be a merger of the two relationships in a given case. Modi J. laid down the following test for seeing whether there would be a merger of the two relationships in a given case. He observed : "I should further like to add that the correct test in such cases is not whether there is an inherent impossibility in a person occupying two positions at one and the same time, namely, a mortgagee in possession and a lessee but whether the enjoyment under the two contracts is inconsistent with each other or not. Where it is, having regard to the terms of both of them, then, to my mind, the only proper conclusion to come to would be that when the subsequent relationship arose, the earlier one must ex necessitate rei be treated as having come to an end on the doctrine of implied surrender as contained in sec. 111(f) of the Transfer of Property Act. With all respect, therefore, I have not felt persuaded, having regard to the clearly inconsistent nature of enjoyment under the two positions between the parties as analysed above to hold that the decision in Motilals case, 1961 M.P.L.J. 66 (supra) should rightly govern the present one." 16. Now, learned counsel for the appellant has sought to distinguish this case on two grounds : firstly, that the case was from the Kota area where at the relevant time Transfer of Property Act did not apply and, secondly, it was not a case where even the Rent Control legislation was put in operation. The learned counsel is undoubtedly right in saying this and, therefore, the observations of Modi J. are obiter so far as the case like the present one is concerned. 17. Their Lordships of the Supreme Court had occasion to examine this question of merger in Jyotish vs. Tarakant(17). It was a case of Santhal Parganas where the Bengal Tenancy Act or the Transfer of Property Act were not applicable. Their Lordships observed as follows : — "Statutory provisions as regards merger were made in the Transfer of Property Act in 1882 and in the Bengal Tenancy Act in 1885—which was later extended to Bihar. These statutory provisions have, admittedly, no application to the present case. Their Lordships observed as follows : — "Statutory provisions as regards merger were made in the Transfer of Property Act in 1882 and in the Bengal Tenancy Act in 1885—which was later extended to Bihar. These statutory provisions have, admittedly, no application to the present case. The legal position as regards merger, apart from these statutory provisions, may be stated thus : That while the Union of the superior and subordinate interests will not automatically cause a merger, merger will be held to have taken place if the intention to merge is clear and not otherwise. In the absence of any express indication of intention, the courts will proceed on the basis that the party had no intention to merge if it was to his interest not to merge and also if a duty lay on him to keep the interests separate, In deciding the intention of the party the court will have regard also to his conduct." Even though the observations look obiter so far as cases governed by the Transfer of Property Act and the Tenancy legislation are concerned, yet so far as the essentials of the doctrine of merger are concerned they are authoritative. According to these observations, the union of the superior and subordinate interests will not automatically cause a merger; merger will be held to have taken place if the intention to merge is clear and not otherwise. In the absence of any express indication of intention the courts will proceed on the basis that the party had no intention to merge if it was to his interest not to merge. 18. Therefore, in examining the question of merger the Court has to find out as to what was the intention of the parties and it is the intention of the parties that will be determinative of the question regarding merger. 19. Bed, J. had considered this question of merger in Roshanlal vs. Baboolal(18). But it is noteworthy that in that case in the mortgage deed itself it was stipulated that when the mortgage money was paid the relationship of landlord and tenant would come into being again and the tenant would continue paying rent. Beri J. also pointed out that the provisions of sec. But it is noteworthy that in that case in the mortgage deed itself it was stipulated that when the mortgage money was paid the relationship of landlord and tenant would come into being again and the tenant would continue paying rent. Beri J. also pointed out that the provisions of sec. 111(d) do not incorporate any element of intention between the parties and would appear to be operative on the merger of interest in regard to the same property and in the same person. On this premise Beri J. distinguished the observations of their Lordships in Jyotish vs. Tarakant(17) which was a case governed by the Santhal Parganas Settlement Regulation, 1872 and not by the provisions of the Transfer of Property Act or the Tenancy Legislation of Bengal. 20. In the cases cited by learned counsel for the respondent the view taken by the Allahabad High Court and by other High Courts in the cited cases has been departed from. In these cases it was held that the characteristics of a mortgage are plainly inconsistent with the relationship of lessor or lessee and that would mean the determination of the tenancy by implied surrender. It was pointed out that the principle of abeyance of the rights of a lessor and lessee during the continuance of the mortgage cannot be introduced in such circumstances in absence of an intention of the parties. However, it was held that the lease is not determined under clause (d). The following passage from Lala vs. Bhagwan Dass(15) brings out the position : "The lease is not determined under clause (d) as a usufructuary mortgage in favour of a lessee does not bring about the merger of the two interests in terms of cl. (d) of sec. 111 of the Act since the whole estate is not merged and the lessor-mortgagor remains owner of the equity of redemption which he can assign or enforce against the mortgagee. However the characteristics of a mortgage are plainly inconsistent with the relation of a lessor and lessee. The provisions of the Act shows that the relationship of a usufructuary mortgagee and mortgagor is incompatible with the relationship of a lessor and a lessee. And that would mean determination of rights of landlord and tenant by implied surrender. However the characteristics of a mortgage are plainly inconsistent with the relation of a lessor and lessee. The provisions of the Act shows that the relationship of a usufructuary mortgagee and mortgagor is incompatible with the relationship of a lessor and a lessee. And that would mean determination of rights of landlord and tenant by implied surrender. The principle of abeyance of the rights of a lessor and lessee during the continuance of the mortgage cannot be introduced in such circumstances in absence of an intention of the parties. That it would, depends on the facts and the circumstances of each case and intention of the parties at the time of the execution of the mortgage. They may agree to keep the relationship of landlord and tenant in abeyance so as to revive it on the termination of the mortgage or they may agree to treat it as a surrender and determination of the lease." 21. Now, there is the doctrine of merger, on the one hand, as has been considered in these cases and then on the other there is the doctrine of implied surrender of the lease in the event of the tenant becoming a usufructuary mortgagee of the property. Beri J. has pointed out regarding the former that intention of the parties is not an element and merger will be the automatic result of the lessor estate and the reversion coming in the hands of the same person. The doctrine of surrender has been brought in case the two relationships are thought to be inconsistent with each other. So far as clause (d) of sec. 111 T. P. Act, on the one hand, which is regarding merger and clauses (e) and (f), on the other, are concerned they are conceptually different, but at times there may be overlapping. In some of the cited cases there has been overlapping and, therefore, in considering the question of merger the question of implied surrender has been brought in. So far as merger is concerned, we have to go by the observations of their Lordships of the Supreme Court in the case of Jyotish vs. Tarakant(17). The union of the superior and subordinate interests will not automatically cause a merger. It will be deemed to have taken place if the intention to merge is clear and not otherwise. So far as merger is concerned, we have to go by the observations of their Lordships of the Supreme Court in the case of Jyotish vs. Tarakant(17). The union of the superior and subordinate interests will not automatically cause a merger. It will be deemed to have taken place if the intention to merge is clear and not otherwise. Likewise, surrender of tenancy rights within the meaning of clauses(e) and (f) of sec. 111 of the Transfer of Property Act is based on the bilateral act of the landlord and the tenant. It partakes the character of a contract between the parties, one party surrenders and the other party accepts the surrender. Such a surrender may be express as contemplated by clause (e) of sec. 1ll or may be an implied one to be inferred from the conduct of the parties and the circumstances of the case. 22. Now, I may keep aside the doctrine of merger in the present case. I do not propose to carry my own view to the point of dissenting from Beri J.s observations that intention is no element in clause (d) of sec. 1ll of the Transfer of Property Act, though on the basis of the Supreme Court observations which are of general character, there is room to take a different view. The present case can, in my view, could be disposed of on the point of surrender. Now the tenant had become the usufructuary mortgagee in the present case. The mortgage deed Ex. 1, inter alia, recites that the mortgagee has been put in possession. I quote from the document :— ^^vr,o mijksä fyf[kr rekeh tk;nkn fcy ,ot eq- 4]000@& v{kjs pkj gtkj dynkj fucn Jh Hkaojykyth Jh lkxjeyth] Jh pkaneyth firk Jh eksrhykyth egktu uk;d fuoklh fuEckgsM+k jgu dh ftl ij dCtk eqrZfguku dks ns fn;k x;k gSA** 23. I considered the question here as to what was the necessity of reciting as above that the mortgagee has been put in possession, when the mortgagee was already in possession as a tenant if the intention was not to do away with the character of the prior possession in the capacity of a tenant. Learned counsel for the appellant submitted that the above recital was a formal one though there was no occasion for the handing over of actual possession of the property. Learned counsel for the appellant submitted that the above recital was a formal one though there was no occasion for the handing over of actual possession of the property. Now in this connection the statement of the defendant needs consideration. As D. W. 1 Sagarmal defendant stated that the landlord approached him saying that they were the tenants already and he wanted a loan from them. It was agreed, according to him, that on the repayment of the loan the defendant-tenants would continue to remain in possession. In cross-examination he was confronted with the mortgage deed and he stated that there was no recital about the tenancy because there was no question about it. He was then confronted with another letter Ex. 6 which he admitted and his explanation for the same was that though Ex. 6 was written, but later on the defendants had retracted from it. Now, the statement of the defendant has to be evaluated in the light of Ex. 6. Ex. 6, inter alia, recites : — ^^vkidh nqdku tks gekjs HkkM+s gS og HkkM+s pqxrh djhus vkidh nqdku eka jgu jk[kh gS :- 4000@& v{kjs pkj gtkj esa thjh fe;kn lkr 7 lky dh dhuh eqír gksok lwa jde ybZ us nqdku vkius lqiqnZ dj nsok xk rFkk jde dks C;kt ugha us nqdku dks HkkM+ks ugha** This recital in Ex. 6 explodes the version of the defendant. This document shows that the parties were aware of the two relationships; the first one of landlord and tenant, and the new one of a mortgagee and mortgagor. Inspite of the two relationships being there it was settled that the rent had been finally settled and that hereafter the landlord would not be paying interest for the mortgage amount and likewise the mortgagee would not be liable for any rent and for 7 years the mortgagors would not be entitled to redeem the property and in the event of such redemption the mortgagee shall hand over possession of the shop to the mortgagor. There was an argument that this document Ex.6 was not usable as substantive evidence, as it had not been made the basis of the suit, nor was it produced with the plaint or on the hearing for the framing of issues. There was an argument that this document Ex.6 was not usable as substantive evidence, as it had not been made the basis of the suit, nor was it produced with the plaint or on the hearing for the framing of issues. It is true, the document was produced for the cross-examination of the defendant, but then there is no gainsaying the fact that it will be furnishing a very important basis for judging the veracity of the defendants case regarding there being an agreement to revive the tenancy on the redemption of the mortgage. This document amongst others furnishes an important circumstance for determining the intention of the parties whether they wanted to terminate the relationship of landlord and tenant and to be governed by the jural relationship of a mortgagor and a mortgagee. Now, if the tenant were to physically bring out his goods from the shop to exhibit the event of termination of the tenancy and to take the goods back the next moment on his becoming a mortgagee there could have been no argument on the side of the appellant, but the question is whether this should make any difference if otherwise the intention of the parties was clear that one relationship should terminate and be supplanted by another jural relationship which would henceforward govern them. No case has been brought to my notice where a period of 7 years was fixed for the redemption of the mortgage by a landlord when the mortgage was made in favour of the tenant and yet it was held that there would be revival of relationship of landlord and tenant on the redemption of the mortgage. This circumstance too has to be kept in view for seeing whether the parties really intended a surrender of the tenancy rights. It is true, the Act confers immunity to a tenant against the eviction, but there could yet be many pit falls. In the present case on becoming a mortgagee the erstwhile tenant would undoubtedly be entitled to remain in possession of the shop for 7 years. It cannot, therefore, be said that it was not in the interest of the defendant appellant to have made such a bargain to ensure his stability for 7 years atleast and thereafter till such time he was paid off. It cannot, therefore, be said that it was not in the interest of the defendant appellant to have made such a bargain to ensure his stability for 7 years atleast and thereafter till such time he was paid off. Looking to these circumstances, therefore, an implied surrender of tenancy rights by the defendant-appellant in favour of the plaintiff-respondent has to be inferred and the court below was right in reaching the conclusion that the relationship of landlord and tenant had come to an end with the tenant entering upon the property as a mortgagee. 24. Learned counsel tried to make a point that the plea of surrender had not been taken in the plaint. It was a suit for redemption of the property and it was the defendant who was resisting the handing over of actual possession on the plea that on the redemption of the mortgage the relationship of landlord and tenant revived. Therefore, nothing turns on the question if the plaintiff had not taken this plea in the plaint. Then much was sought to be made out of the averment in the plaint that the plaintiff needed the suit shop for his bona fide personal requirement. This too is of no consequence as the suit was for redemption of the mortgage and by adding this superfluous plea the plaintiff was only wanting to put an additional string to his bow but that would not prejudice his case, if otherwise he has any. 25. Now, finally, I may deal with the question whether it can be said that the tenant could not have contracted out of the protective provisions of sec. 13 of the Act. Learned counsel relied on some observations in V. B. Raju vs. K. Avatharam(6) K. Punnen vs. P. Kurup(19) and Niranjan Singh vs. Shri Bhagwan Ram(20). Here, to my mind, there was no question of the party making any contract in derogation of the protective provisions of the statute. It is a case of surrender of tenancy rights. The protection against eviction is provided by sec. 13 of the Act. The Courts are prohibited from ordering eviction of a tenant except on fulfilment of the conditions laid down in sub-sec. (1) of sec. 13 of the Act. No one needs protection against himself. It is a case of surrender of tenancy rights. The protection against eviction is provided by sec. 13 of the Act. The Courts are prohibited from ordering eviction of a tenant except on fulfilment of the conditions laid down in sub-sec. (1) of sec. 13 of the Act. No one needs protection against himself. The protection is sought to be given by law against the acts of a landlord, but if a tenant himself by his voluntary act surrenders his tenancy rights then the relationship of landlord and tenant would come to an end and then there could hardly be any question of the protective provisions being invoked by the tenant. Clause (f) of sub-sec. (1) speaks of the tenant having renounced his character as such and then in that event the provisions of sec. 13 could not be attracted in his case. The case of surrender of tenancy is analogous to that of renunciation. Therefore, when a person surrenders his tenancy rights and the act of surrender is not vitiated on account of any coercion, fraud or otherwise then there is no reason to think that the surrender shall not result in putting an end to the tenancy. Surrender is based on bilateralism and if it has come about then that will be end of the tenancy. This has precisely happened in the present case. Therefore, the defendant appellant cannot reasonably resist the handing over of vacant possession of the suit premises on redemption of the mortgage as he is bound to do under the law. 26. Before parting with the case I may dispose of one more point taken by the learned counsel. Learned counsel argued that his case is governed by the exception envisaged by Modi J. in the case cited above and if an agricultural tenant is protected on account of stability the consideration should govern a person who is a statutory tenant under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. This is, to my mind, begging the question. If the relationship of landlord and tenant comes to an end by a voluntary surrender of the tenancy then the ex-tenant proprio vigori ceases to be a tenant and can no longer be treated as a statutory tenant as well. Therefore, this argument is without any substance. 27. The appeal has no force and accordingly it is hereby dismissed. If the relationship of landlord and tenant comes to an end by a voluntary surrender of the tenancy then the ex-tenant proprio vigori ceases to be a tenant and can no longer be treated as a statutory tenant as well. Therefore, this argument is without any substance. 27. The appeal has no force and accordingly it is hereby dismissed. In view of the circumstances the parties are left to bear their own costs of the litigation. 28. Learned counsel for the appellant prayed for leave to appeal under sec. 18(2) of the Rajasthan High Court Ordinance, 1949. In view of the importance of the question involved the leave to appeal is granted.