N. D. V. BHATT, J. ( 1 ) THESE two appeals arise out of a common judgment and decrees passed in r. a. No. 43/1987 and r. a. No. 44/1987 passed by the civil judge, gadag. The facts leading to these appeals briefly stated are as under: ( 2 ) PLAINTIFF-RESPONDENT filed o. s. No. 133/1985 on the file of the ii additional munsiff, ii court, gadag praying for a decree to redeem the mortgaged property; for reconveyance of the mortgaged property and for 'future mesne profits. ' the case made out by the plaintiff can be summarised as follows: the suit property, viz. , cis. No. 6016/1-a comprising of a house and open site and situate at betageri (gadag) originally belonged to the ownership of one basappa prabhanna gutti and six others. They had mortgaged with possession the said property to defendant on 18-6-1977 for Rs. 1,500/- for a period of eight years. Plaintiff and one susanna purchased the suit property on 29-9-1981 from the said basappa and others for Rs. 4,000/- and thereby became the owners of the property, acquiring the right to redeem. The mortgage period expired on 18-6-1985. Plaintiff issued a notice dated 3-6-1985 to defendant calling upon to reconvey the suit property by taking the mortgage amount of Rs. 1,500/- after the mortgage period was over. Defendant refused to receive the notice. The joint owner susanna has been residing at kuwait. Under these circumstances, plaintiff alone filed the suit praying for the relief referred to earlier. ( 3 ) DEFENDANT (appellant) resisted the suit by his written statement. In short defendant contended as follows: the suit filed by plaintiff alone without making susanna a party is bad in law for want of necessary party. Defendant was a tenant on a yearly rent of Rs. 20/ -. The suit house was in a dilapidated condition. The owners, viz. , basappa and others were not in a position to effect repairs. They were also in need of money for legal necessity. They, therefore, mortgaged the property with possession for Rs. 1500/ -. Defendant was a tenant on a yearly rent of Rs. 20/ -. The suit house was in a dilapidated condition. The owners, viz. , basappa and others were not in a position to effect repairs. They were also in need of money for legal necessity. They, therefore, mortgaged the property with possession for Rs. 1500/ -. Apart from the conditions incorporated in the mortgage deed there was also an oral agreement between basappa and others on the one hand and the defendant on the other to the effect that the defendant should reconstruct the building the cost of which should be repaid by the former and that defendant should continue in possession even after the mortgage period was over, on the same rent on which he was holding the property on lease next before the mortgage was executed. Accordingly he reconstructed the building at the cost of rs. 10,000/ -. Unless, therefore, the said sum along with the mortgage amount of Rs. 1,500/- is paid, redemption cannot be had. At any rate, even if the plaintiff is entitled for redemption, defendant cannot be directed to deliver possession. The other allegations in the plaint were suitably denied. On these contentions defendant prayed for dismissal of the suit. ( 4 ) THE learned munsiff on a consideration of the evidence on record, both oraland documentary, and for the reasons recorded in his judgment dated 8-10-1987 decreed the suit as under:"the suit of the plaintiff is decreed. A preliminary decree is passed as under: 1. The plaintiff is entitled to redeem the mortgage after payment of the following amount to the defendant. (a) the principle loan amount of Rs. 1,500/ -. (b) an amount of Rs. 4,000/- and Rs. 88-98 ps. With 9% interest p. a. from the date of the suit till the said amount is paid. 2. (a) the defendant is directed to reconvey the suit property to the plaintiff at his cost. (b) the defendant is directed to handover the actual possession of the suit property to the plaintiff. (c) the defendant is directed to do the same within six months from the date of decree, after receiving the above stated amount of money from the plaintiff. 3. Plaintiff is entitled to the cost of the suit. 4. Draw a preliminary decree accordingly. (c) the defendant is directed to do the same within six months from the date of decree, after receiving the above stated amount of money from the plaintiff. 3. Plaintiff is entitled to the cost of the suit. 4. Draw a preliminary decree accordingly. " ( 5 ) BEING aggrieved by the same, defendant preferred r. a. No. 43/1987 before the civil judge, gadag. Plaintiff being aggrieved by that portion of the judgment which has gone against him preferred r. a. No. 44/1987. The learned civil judge by his common judgment dated 20-7-1989 dismissed defendant's appeal and the appeal preferred by the plaintiff came to be allowed. The operative portion of the order reads as under:"the appeal preferred by the defendant in r. a. No. 43/1987 is dismissed and the appeal preferred by the plaintiff in r. a. No. 44/1987 is allowed. This judgment and decree passed by the learned ii addl. Munsiff, gadag in o. s. No. 133/1985, dated 8-10-1987, is partly set aside holding that, (a) the plaintiff is entitled to redeem the mortgaged property on deposit of the mortgaged money of Rs. 1,500/- before the trial court within 60 days from the date of this order; (b) the defendant should deliver the possession of the mortgaged property to the plaintiff thereafter; (c) to deliver to the plaintiff the mortgage deed and all the documents relating to the mortgaged property which are in possession or in power of the defendant; (d) to execute the registered retransferred deed of the mortgaged property in favour of plaintiff at the cost of the plaintiff acknowledging in writing that any rights in dcrrogation of his interest transferred to the defendant, has been extinguished; (e) the award of Rs. 4,000/- made by the trial court towards the cost of the construction payable to the defendant with interest at 9% p. a. from the date of the suit till the date of payment, is set aside; and (f) the award of Rs. 88-98 ps. Payable to the defendant towards reimbursement of the municipal tax is confirmed. Draw up preliminary decree granting six months time. Return the trial court records. Copy of this judgment shall be kept in r. a. No. 44/1987. "5. Being aggrieved by the aforesaid judgment and decrees, defendant has preferred the above two regular second appeals. ( 6 ) NOTICE was issued to the plaintiff-respondent before admission. Draw up preliminary decree granting six months time. Return the trial court records. Copy of this judgment shall be kept in r. a. No. 44/1987. "5. Being aggrieved by the aforesaid judgment and decrees, defendant has preferred the above two regular second appeals. ( 6 ) NOTICE was issued to the plaintiff-respondent before admission. After hearing the advocates on either side, the two appeals were admitted and the following substantial questions of law were raised for consideration: (1) whether in the facts and circumstances of the case can it be gathered that the appellant was a tenant next before the mortgage was effected in his favour? (2) if so, whether on account of the mortgage in his favour, the leasehold rights of the appellant got merged in the mortgage? (3) whether the interpretation of the decision cited at the bar in suleman appasaheb mulla v gopal murari padiyar desai and others, 1979 (1) kar. L. j. 271 is correct? (4) whether the finding of the first appellate court with reference to the improvements said to have been effected is not in accordance with law? (5) whether the suit filed by the plaintiff alone without adding the comortgagor is not maintainable? ( 7 ) LEARNED advocates representing the parties submitted that the appeals be taken up for final disposal. Accordingly, the appeals were taken up for final disposal. Have heard Sri m. Ram bhat, learned Advocate for the appellant and Sri R. V. Naik, learned Advocate representing Sri u. L. Narayana rao, learned Advocate for the respondent in both the appeals. ( 8 ) IT will have to be seen in the first instance as to whether in the facts and circumstances of the case it can be gathered that the appellant-defendant was a tenant next before the mortgage xvas effected in his favour. The tenor of the judgments delivered by the two courts-bclow would indeed go to show that the lower courts also proceeded on the basis that the defendant was a tenant in respect of the suit property next before the mortgage came into being. Evenotherwise I am of the view that the evidence of the defendant coupled with the recitals reflected in the mortgage deed (vide copy of the mortgage deed at ex. Evenotherwise I am of the view that the evidence of the defendant coupled with the recitals reflected in the mortgage deed (vide copy of the mortgage deed at ex. P. 3) would not leave anyone in doubt with reference to the status of the defendant in relation to the suit property prior to the coming into being of the mortgage. In this connection it would be indeed refreshing to full out the recitals relating to this aspect in the certified copy of the mortgage deed at ex. P. 3. The same reads as under: this deed came into existence in the year 1977. If defendant was not a lessee of , the suit property at the time when ex. P. 3 came into being, the portion of the recitals culled out hereinabove, viz. , resj rfasirt $n> d lictjd 4ocand:i tfosd ion". Would be rendered meaningless. It would be indeed idle to believe that the parties incorporated the recital in the original of ex. P. 3 except in the context of the situation existing at that point of time. Apart from this ex. D. 1, dated 23-7-1975 which is a receipt purported to have been executed by basappa the erstwhile owner of the suit property also would assumes significance. It is indeed necessary to note here that basappa was sought to be examined by the plaintiff as P. W. 2, however, even before his cross-examination was completed, he was given up his being not available. It is, therefore, clear that the evidence of basappa is not of assistance to the plaintiff. It is also unreasonable to believe in the context of the said circumstance that defendant ought to have called him as a witness. Under these circumstances, ex. D. 1which is produced by the defendant will have to be given due weight and if ex. D. 1 is appreciated in the context of the recitals reflected in the original of ex. P. 3 coupled with the evidence of d. W. 1, I have no hesitation whatsoever in holding that defendant was indeed a tenant in respect of the suit property prior to the original of ex. P. 3 was executed by the defendant in favour of basappa and six others. P. 3 coupled with the evidence of d. W. 1, I have no hesitation whatsoever in holding that defendant was indeed a tenant in respect of the suit property prior to the original of ex. P. 3 was executed by the defendant in favour of basappa and six others. ( 9 ) IF that be so, the next question for consideration is as to whether on account of the mortgage in his favour the leasehold rights of the defendant-appellant got merged in the mortgage. This question cannot be considered either in a closed jacket or in a water tight compartment. The question as to whether the leasehold right of the defendant was got merged in the mortgage will have to be considered in the context of the recitals reflected in ex, p. 3 along with the other circumstances brought into being on record. At this juncture, it is indeed necessary to note here that the recitals in ex. P. 3 do not expressly say as to what did happen or what should happen to the leasehold right of the defendant-appellant. In this view of the matter, it should be the duty of the court to gather the intention of the parties from the totality of the recitals in ex. P. 3 and if necessary from the surrounding circumstances. It would, therefore, be in fitness of things to cull out the relevant recitals in ex. P. 3 in this behalf. The recitals are as under: ( 10 ) A perusal of the recitals culled out hereinabove would reflect the following salient features: in the first place, it is seen that there is no stipulation to pay interest. This is clear from the recitals it is further seen that there is no liability cast upon the defendant to pay any rent. This is clear from the recitals it is further seen that the responsibility is cast upon the defendant (mortgagee) to affect the minor repairs to the house and inside the house. The liability to pay tax of the municipality is retained by the mortgagor himself. This is clear from the recitals it is further seen that the responsibility is cast upon the defendant (mortgagee) to affect the minor repairs to the house and inside the house. The liability to pay tax of the municipality is retained by the mortgagor himself. It is also seen that the period of the mortgage is fixed as 8 it is also seen that there is a further stipulation that if according to the terms of the mortgage deed, the mortgagor is not in a position to pay the full amount at the stipulated time, the mortgagee is entitled to enjoy the property according to the terms of the agreement. Further there is also another stipulation as seen from the recitals reflected hereinabove. The said recitals is to the effect that if for some reason the defendant was not interested to continue in possession after 8 years and if at that time the amount payable to him by the mortgagor towards the mortgage amount was not paid then it was open to the defendant to recover the said amount by the sale of the mortgaged property. This stipulation is clear from the recital. it is in the context of the aforesaid stipulations flowing from the recitals of the deed along with the surrounding circumstances that the court is required to see as to whether the lease in favour of the defendant which was in existence deed come to an end by implied surrender on execution of the usufructuary mortgage at ex. P. 3. ( 11 ) IT is well settled that there is no question of merger as such of a lease with the mortgagee. In other words, it is not as if lease and mortgage cannot co-exist. This is clear from the decision of the Supreme Court in gambangi applaswamy naidu and others v behara venkataramanayya patro and others, (1984)4 SCC 382 : AIR 1984 SC 1728 . The Supreme Court has made it clear in the said case that there can be no merger of a lease and mortgage, even where the two transactions arc in respect of the same property. The Supreme Court has made it clear in the said case that there can be no merger of a lease and mortgage, even where the two transactions arc in respect of the same property. As pointed out in the said decision, it is well settled that for a merger to arise, it is necessary that 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 outstanding. In the case of a lease, the estate that is outstanding in the lesser is the reversion; in the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgage. In this view of the matter, there cannot be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. In fact, this court in the decision in suleman appasaheb mulla v gopal murari padiyar desai and others, 1979 (1) kar. L. j. 271 has made it clear that the right of a lessor and a mortgagee can co-exist. Under these circumstances, the real question for consideration is not one of merger, but the question for consideration is one of implied surrender. In other words, it will have to be seen as to whether the lessee in the instant case, i. e. , the defendant impliedly surrendered his lessee's right for the purpose of taking usufructuary mortgage of the property. ( 12 ) SRI m. Ram bhat, learned Advocate for the appellant submitted that in the facts and circumstances of the case, it cannot be said that the lessee had impliedly surrendered his right as a lessee during the subsistence of a mortgage deed. According to Sri ram bhat all that can be said is that the lessee's right was held in abeyance. This position was rebutted by the learned Advocate for the respondent-plaintiff. In fact, both the learned advocates have relied on the decision of the Supreme Court in gambangi's case alluded to hereinabove, in support of their respective contentions. In this view of the matter it would be indeed in fitness of things and necessary also to ascertain the nature of the document at ex. In fact, both the learned advocates have relied on the decision of the Supreme Court in gambangi's case alluded to hereinabove, in support of their respective contentions. In this view of the matter it would be indeed in fitness of things and necessary also to ascertain the nature of the document at ex. P. 3 by the touchstone of the observations, made by the Supreme Court in the said case. In this connection, the observation of the Supreme Court at para-6 of its judgment in the aforesaid case is required to be noted. It reads as under:"in our view the answer to the question raised in this appeal must depend 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 this obviously depends upon what was the intention of the parties at the time of the execution of the mortgage deed in favour of the sitting tenant to be gathered from the terms and conditions of the mortgage transaction in light of the surrounding circumstances of the case. It may be stated that in both the decisions of the Andhra Pradesh high court on which reliance was placed by the respective counsel of the parties in support of his own contention the question was ultimately decided on proper construction of the terms and conditions of the mortgage transactions; in the earlier decision the court took the view that there was nothing in the mortgage deed to suggest that there was an implied surrender of the lessee's rights while in the later case the court held that the terms of the mortgage deed showed that the lessee had impliedly surrendered his rights. In other words, it all depends upon whether by executing a possessory or usufructuary mortgage in favour of a sitting tenant the parties intended that there should be a surrender of lessee's right or not, and only if an implied surrender of lessee's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. "it is necessary to notice here that in the case dealt with by the Supreme Court, the Supreme Court took the view that there was no implied surrender and in that view of the matter, the view taken by the Andhra Pradesh high court in the said case was set at naught and the order of the district court was restored. The Supreme Court while reaching its conclusions took into consideration three or four important features flowing from the recitals in the mortgage deed in the said case which was marked as exhibit a-3. It would be indeed worthwhile to cull out the recitals of the mortgage deed in the said case to have a clear perspective with reference to the observations made by the Supreme Court in that context. At para-7 in the said judgment, the Supreme Court has excerpted the mortgage deed in the said case at ex. A-3. It reads as under:"exhibit a-3. Deed of mortgage of land accompanied by delivery of possession of land for Rs. 250 (in words two hundred and fifty rupees) executed on August 23, 1942 in favour of sambangi taviti naidu, son of late jogi naidu of koppula velama caste, living by cultivation, resident of dathivalasa village; hamlet of tummalavalasa of parvatipuram sub-district by behara adinarayana patro, son of late bhcra narayana patro sista karnam, inamdar, resident of markondupulli, village of the same sub-district. The amount of principal and interest due on the promissory note executed by me in your favour previously on April 24,1940 for my necessity, the amount paid by you on my behalf to the estate towards the cist, etc. , due on this land and the amounts borrowed from you by me in instalments subsequent thereto all those amounts are found to be Rs. 200 and I have found due to you in this sum. The amount borrowed now for paying the cist to the estate and for my own maintenance is Rs. 50. In all, Rs. 250 (in words two hundred and fifty rupees) i shall pay interest at the rate of re. 0-4-0 (four annas) per cent per mensem and shall discharge the principal and interest. The amount borrowed now for paying the cist to the estate and for my own maintenance is Rs. 50. In all, Rs. 250 (in words two hundred and fifty rupees) i shall pay interest at the rate of re. 0-4-0 (four annas) per cent per mensem and shall discharge the principal and interest. For this, the produce of all kinds of crops raised on the half share of the lands previously being cultivated by you as my subtenant on condition of paying 1/4 (?) Share out of the jarayathi dry and wet lands bearing No. 1 and known as "tummulamanu polam" which passed to me as my self-acquired property, which has been in my possession and enjoyment till this day, which is situate in tummalavalasa village and the boundaries, etc. Of which are given hereunder, shall be utilised for paying interest due on this deed and the interest due on the deed executed previously on August 30, 1939 and get registered in the office of the sub-registrar of parvatipuram as No. 1148/39 and for paying the cist due to the government on my behalf and obtaining receipt in my name. The remaining amount shall be paid to me by January 15 of every year and the receipt obtained from me. When the above mentioned principal and interest are paid to you in full, payment shall be endorsed on this deed and this deed shall be returned and the land mentioned herein shall be delivered possession of to me. "after perusing the recitals of the mortgage deed at ex. A-3 in the said case, the Supreme Court noticed 3 or 4 salient features flowing from the said recitals. The salient features noticed by the Supreme Court are as under: (1) that though the deed commences by reciting that possession of the land has been delivered thereunder it refers to the fact that the original mortgagee (first defendant) was actually cultivating the lands as a tenant of the mortgagor on crop share basis; that is to say the rental was payable by the tenant in the share of a crop share; (emphasis supplied) (2) that the mortgagor had agreed to pay interest at the specified rate on the total loan of Rs. 250 and had undertaken to discharge the principal and interest; (3) that the rental of the land payable by the first defendant was to be adjusted against the interest payable by the mortgagor under this deed as well as the earlier deed and the cist payable by him to the government; and excess, if any, to be paid to mortgagor; (emphasis supplied) (4) that when the principal and interest are fully repaid such payment was to be endorsed on this deed and the deed as also the land shall be "delivered to the possession of mortgagor. " ( 13 ) IF having noted the aforesaid salient features in the recitals flowing from the mortgage deed at ex. A-3 in the said case, the Supreme Court has observed as under:"it may be noted that the last portion of the document is equivocal in that it does not mention whether on redemption physical possession is to be delivered or symbolical possession is to be delivered to the mortgagor. But under the terms of the deed one thing is clear that during the currency of the mortgage the liability to pay rent to the lessor-mortgagor (albeit to be'discharged by adjustment) is kept alive. If anything such a term clearly runs counter to any implied surrender of the lessee's rights. Secondly, there is no term fixed for redemption of mortgage property which means that it was open to the mortgagor to redeem the mortgage at any time that is to say even within a very short time and if that be so, would a sitting tenant cultivating the lands under a lease, who has obliged his lessor by advancing monies to him to tide over his financial difficulties give up his rights as a lessee no sooner redemption takes place? In our view, it does not stand to reason that he would do so. This circumstance coupled with a fact that the mortgage deed keeps alive the lessee's liability to pay rent during the currency of the mortgage clearly suggests that no implied surrender was intended by the parties. (emphasis supplied) in the instant case as pointed out earlier there is no stipulation to pay interest on the mortgage amount. This circumstance coupled with a fact that the mortgage deed keeps alive the lessee's liability to pay rent during the currency of the mortgage clearly suggests that no implied surrender was intended by the parties. (emphasis supplied) in the instant case as pointed out earlier there is no stipulation to pay interest on the mortgage amount. The mortgage deed recites in clear terms that then again it is seen that in this case there is no liability cast upon the tenant either to pay the rent or to adjust it towards anything else, as was stipulated in the mortgage deed, the recitals of which had come to the scrutiny of the Supreme Court. Further it is indeed significant to note here that it is not also the case of the defendant that the rent was to be adjusted towards any interest, in fact, the defendant has not remotely stated that there was any stipulation to pay interest. The portion of para-3 of his written statement which is relevant in this behalf does not even remotely whisper about this aspect. At this juncture it would be indeed convenient to cull out para-3 of the written statement of the defendant. It reads as under: the suit property belonged to one basappa gutti and others. The suit house was in a most dilapidated condition. The said basappa was not in a position to repair the suit house or to reconstruct. They also required money for their legal necessity. The defendant was in possession of the suit properties as a tenant on rental of Rs. 20/- per year. The said basappa and others mortgaged the suit properties to this defendant in 1977, with possession for a sum of Rs. 1500/ -. Other than the conditions embodied in the mortgage deed, there was an oral agreement before the elders between this defendant and basappa gutti and others that the defendant should reconstruct the building. The cost of which are to be repaid by the basappa and others to the defendant. It was also agreed that after the period of mortgage the defendant should continue in possession of the suit property as a tenant on the same rental which was prior to the mortgage. Accordingly, defendant has reconstructed the building at the cost of Rs. 10,000/ -. Unless the mortgagors repay the said amount of Rs. 10,000/- along with the mortgage amount of Rs. Accordingly, defendant has reconstructed the building at the cost of Rs. 10,000/ -. Unless the mortgagors repay the said amount of Rs. 10,000/- along with the mortgage amount of Rs. 1500/-, the mortgagors are not entitled to redemption. This defendant has also paid in all Rs. 88-98 ps. As municipal tax and he is also entitled to recover the same. "a perusal of the above would go to show that it is not the case of the defendant that there was any liability on the part of the mortgagor to pay interest. This circumstance coupled with ihe clear recital in the mortgage deed at ex. P. 3 culled out earlier would make it clear beyond a pale of doubt that there was no agreement to pay interest at all on the mortgage amount. In that view of the matter the question of adjustment of the rent towards interest did not arise. Further as can be seen from the portion of the written statement of the defendant culled out hcreinabove, it is also not the case of the defendant that the rent was to be adjusted towards any other thing let alone interest. It is significant to note here that the liability to pay municipal tax also is retained by the mortgagor only. This circumstance coupled with the recitals in ex. P. 3 to the effect that the defendant was not required to pay any rent would go to show that the liability on the part of the defendant to pay rent did come to an end before the document at ex. P. 3 came into being. Then again, it is seen that the mortgage period in the instant case is fixed as 8 years. This is clear from the recital in the preamble of the deed wherein it is stated dejtsra sia, ass, sandidjfc, jjair (8) it is also clear from the further recital in the deed to the effect "^a. s. aod. 30135 (8) ssfirtf, rsfcfc ojnjandjs, dtfo arfsrt supers *and> l3/> j-s, ^^ 3*andh>and5frod sloped *toa,. . . that the period of mortgage was for 8 years. 30135 (8) ssfirtf, rsfcfc ojnjandjs, dtfo arfsrt supers *and> l3/> j-s, ^^ 3*andh>and5frod sloped *toa,. . . that the period of mortgage was for 8 years. At this juncture it is indeed necessary to recall here that in the case dealt with by the Supreme Court, the Supreme Court took the view that having regard to the fact that no period is fixed for redemption of mortgage, it was possible for the mortgagor to redeem the mortgage at any time, that is to say, even within a very short time and if that be so, it would be unreasonable to believe that a sitting tenant cultivating the land under a lease, who has obliged his lessor by advancing monies to him to tide over his financial difficulties would give up his rights as a lessee no sooner redemption takes place. As noticed above, such is not the case here. The period of mortgage as fixed is for a pretty long period, viz. , for 8 years. Then again, it is seen that a very crucial recital with reference to the rights available to the parties will also give a clue as regards the intention of the parties. The recital is already contained in the portion of the recital from ex. P. 3 quoted earlier. However, in this context, it is necessary to cull out a part of the same even at the risk of repetition. It reads as under: this recital also is a very crucial recital which if appreciated in conjunction of the other recitals and circumstances would help the court in reaching a correct con- elusion. In my view, the recitals referred to immediately hereinabove if appreciated in conjunction would militate against the case made out by the defendant. At this juncture, it is indeed necessary to note the defence taken by the defendant with reference to the continuance of the tenancy. The defendant has taken a contention in the written statement that there was an oral agreement between him and the mortgagor to the effect that he should continue as a lessee after the redemption of the mortgage period was over. This plea did not find favour with the two courts-below. I do not find any justifiable ground to take a view different from the one taken by the two courts particularly on a question of fact like the present one. 13. This plea did not find favour with the two courts-below. I do not find any justifiable ground to take a view different from the one taken by the two courts particularly on a question of fact like the present one. 13. Sri ram bhat, learned Advocate for the appellant invited the attention of this court to the decision of this court in m. mallikarjunaiah v shivanna and others, AIR 1973 Mysore 40. In the facts and circumstances of the said case this court has held that the tenancy rights of the possessory mortgagee would remain in abeyance during the period of mortgage and the parties would revert to their former positions after the redemption and on redemption the landlord would not entitled to get possession of the land. This court on a consideration of a number of decisions of different high 3 courts has, among other things, at paras-19 and 20 of its judgment observed as under:"in my judgment, it is not necessary to scrutinise the present case to find out whether it falls into one or the other of the said four principles. I rest my conclusion on the last principle which is supported by the decision of the ajlahabad high court in kallu's case, ILR (1902)24 all. 487 and i respectfully agree with that view. It is true that one person cannot be a tenant and also a mortgagee in possession in respect of a common property and therefore it would be proper jo hold that the lessee's right, like the tenancy rights, must be held to have remained in abeyance for the larger right to come into effect. When the larger right like the mortgagee's right is put an end to that person should be restored with his antecedent tenancy rights in the absence of any contract to the contrary in the deed of mortgage. It is clear that no such contract adverse to the restoration of the tenancy rights of the defendant is found in the mortgage deed in question. If I am right that is sufficient to dispose of this appeal; but in case I am wrong, i pass on to consider one other question. The tenancy of the defendant was in force on the date of the coining into force of the Mysore tenancy Act, 1952 (mysore act No. Xiii of 1952 ). To recall, the act came into force on 1-1-1954. The tenancy of the defendant was in force on the date of the coining into force of the Mysore tenancy Act, 1952 (mysore act No. Xiii of 1952 ). To recall, the act came into force on 1-1-1954. By the operation of law, the tenancy of the defendant was deemed to have continued for five years till 1-1-1959. It was in between that period, that is, on 16-12-1956 that the mortgage was executed. When the statute makes it obligatory for the continuance of the tenancy for a period of five years from the date of the commencement of the Act, there was no question of termination of the tenancy by implied surrender, on the execution of the mortgage in 1956. As already noted, provision for express surrender was incorporated in the act only by the amending act (16 of 1957) that is, during the subsistence of the mortgage. It is not the case of the parties that there was an express surrender after the mortgage. Therefore, there was an abeyance of the tenancy and it would spring into active life on the redemption of the mortgage. "a perusal of the aforesaid decision would indeed go to show that the observation of this court in paras-19 and 20 in particular, is in the context of the provisions of the Mysore tenancy Act, 1952 (mysore act No. Xiii of 1952 ). Among other things, it is pointed out by this court that when the statute makes it obligatory for the continuance of the tenancy for a period of five years from the date of the commencement of the Act, there was no question of termination of the tenancy by implied surrender, on the execution of the mortgage in 1956. It is, therefore, clear that one of the important factors which weighed with this court to hold in the way and manner as it did in the decision referred to hcreinabove was the obligation cast upon the landlord to continue the tenancy for a period of five years. In my view, the facts of the case in mallikarjunaiah's case are clearly distinguishable, for the reasons already stated. In this view of the matter, I have no hesitation to hold that the said decision pressed into service by the learned Advocate for the appellant is not of any assistance to him at all. In my view, the facts of the case in mallikarjunaiah's case are clearly distinguishable, for the reasons already stated. In this view of the matter, I have no hesitation to hold that the said decision pressed into service by the learned Advocate for the appellant is not of any assistance to him at all. Further, the clear guidelines given by the supreme court in gambangi's case would be of assistance to reach a correct conclusion in the instant case. ( 14 ) SRI ram bhat, learned Advocate for the appellant, however, contended tha thaving regard to the Provisions of the Karnataka Rent Control Act, the tenant in question became a statutory tenant even before the mortgage at ex. P. 3 came into being and that, therefore, the question of his impliedly surrendering the tenancy did not arise at all. In this connection, the learned Advocate for the appellant sought to gain support from the decision of this court in N. Rajasekhar v V. N. Roy, ILR 1990 kar. 2826. It will have to be seen as to whether the said decision is of any assistance to the point raised on behalf of the appellant. In rajasekar's case, the full bench of this court was required to consider two questions of law, the same having been referred to it by a division bench. The points which were required to be resolved by the full bench were:" (1) whether the mortgagee in possession would be a landlord for the purpose of Section 21 (1) (h) of the Karnataka Rent Control Act, 1961? And (2) whether a tenant under him would become statutory tenant?"the full bench on an examination of the Provisions of the Karnataka Rent Control Act as also the various decisions of this court and for the reasons recorded in its judgment answered both the questions in the affirmative. A perusal of the judgment in the said case would indeed go to show that the questions raised by Sri ram bhat, learned counsel for the appellant in this case was not a question for consideration of the full bench. What the full bench said is that the mortgagee in possession would be a landlord in relation to the tenant who was inducted by the mortgagor. What the full bench said is that the mortgagee in possession would be a landlord in relation to the tenant who was inducted by the mortgagor. The full bench also took a view that the right and protection given to the tenant under the kaniataka Rent Control Act did not get affected in any way merely because a usufructuary mortgage is executed by the mortgagor (in favour of a third party) and a statutory tenant under the original landlord obviously becomes the statutory tenant under the mortgagee also. It is thus clear that the said decision is of no assistance to the appellant at all. ( 15 ) SRI ram bhat, learned Advocate for the appellant, however, contended that the right of a statutory tenant under Section 21 (1) (h) of the Karnataka Rent Control Act can be done away with only by having recourse to the Provisions of Section 21 (1) and without having recourse to the same, the tenancy rights do not get extinguished at all. The submission made by Sri ram bhat is liable to be rejected on two counts. In the first place such a plea does not find its place in the written statement. Evenotherwise assuming for the time being that the Rent Control Act was made applicable to the area in which the suit property was situated even before the mortgage at ex. P. 3 was executed still it is difficult to agree with the submission made by the learned Advocate for the appellant. It is true that if the landlord would like to take possession through the intervention of the court he should necessarily have recourse to the Provisions of Section 21 of the act. Section 21 (1) is in the nature of an injunction to the court to pass an order or decree for the recovery of possession of any "premises" in favour of the landlord and against the tenant except on the grounds referred to in clauses (a) to (p) of the proviso to Section 21 (1 ). That is not the case here at all. It is not as if the tenant cannot vacate or give up his right without the intervention of the court. The question for consideration of this court in this case is as to whether he gave up his right as a tenant to acquire a different type of right. That is not the case here at all. It is not as if the tenant cannot vacate or give up his right without the intervention of the court. The question for consideration of this court in this case is as to whether he gave up his right as a tenant to acquire a different type of right. In other words, the question is as to whether an implied surrender occurs by creation of a new relationship or by relinquishment of possession. In this view of the matter all that is required to be seen in this case is as to whether the parties while creating a new relationship wanted to get rid of the old relationship. In the instant case as already pointed out the fact that there was no stipulation to pay any interest on the mortgage money; the fact that there was no liability on the part of the defendant to pay rent after ex. P. 3 came into force; the fact that there was no agreement to make any adjustment of payment of rent or interest; the fact that the mortgage period is fixed for about 8 years; the fact that if for some reason plaintiff was unable to make payment even at the end of 8th year, the defendant was given an opportunity to continue on the land till the amount was paid and other circumstances already referred to hereinabove would unmistakably indicate that the intention of the parties was not to continue the relationship of lessor and lessee as between the mortgagor and mortgagee. In the opinion of this court if these circumstances arc tested by the guidelines given by the Supreme Court in gambangi's case, the same would unmistakably point to the conclusion that there was an implied surrender of his tenancy on the part of the defendant immediately before ex. P. 3-usufructuary mortgage was executed in his favour. ( 16 ) SRI ram bhat, learned Advocate for the appellant submitted to this court that the first appellate court has erred in correctly interpreting the decision of this court in suleman appasaheb mulla 's case, and also wanted to gain support from the said case, in support of his contention that the appellant's right as lessee would continue even after the redemption of mortgage. In the said case, 'k' who was the owner had let out the premises to 'u' and later executed a possessory mortgage in favour of the lessee 'u'. The rights of the mortgagee was confirmed and the rent was set off against interest payable on the mortgage money. When this was so, 'k' who was the mortgagor sold his right of redemption and possession. Further, 'u' who was the lessee and mortgagee transferred his rights (under ex. P. 2) to one 'h' and delivered possession to 'h' and 'h's right became vested in the defendant in the said case. In the context of the said facts this court held that on the terms of the mortgage deed at ex. P. 2, the tenant never surrendered his rights as a tenant and that during the period of mortgage, both the leasehold rights and the mortgagee's rights continued to co-exist. However, this court took the view that though 'u' did not surrender bis tenancy rights at the time when he entered into possessory mortgage under ex. P. 2, he did surrender by implications his rights as a tenant and the mortgagor was entitled to physical possession of the redemption. It is, therefore, clear that apart from the fact that there should not be any difficulty in understanding the ratio laid down in the said case from a correct perspective, the said decision is also not of any assistance to the appellant in the instant case. ( 17 ) THUS, for the reasons stated hereinabove, it would follow that substantial questions 2 and 3 set out earlier stand answered as above. If that be so, the two other questions which arise for consideration of this court are as to whether the finding of the 1st appellate court with reference to the improvements said to have been effected by the defendant is not in accordance with law? And whether the suit filed by the plaintiff alone without adding the co-mortgagor as a party is not maintainable? It would be convenient to dispose of at this stage, the, question as to whether the suit filed by the plaintiff alone without adding the co-mortgagor is not maintainable. In fact, this question should not detain this court for long having regard to the well settled position of law in this behalf. It would be convenient to dispose of at this stage, the, question as to whether the suit filed by the plaintiff alone without adding the co-mortgagor is not maintainable. In fact, this question should not detain this court for long having regard to the well settled position of law in this behalf. ( 18 ) IT is seen that this aspect is dealt with by the 1st appellate court at para-4 of its judgment. The discussion on this aspect by the i appellate court is there as it is. It is seen that the i appellate court, among other things, has relied upon the decision in sonnakka and another v dombara munekka and others, AIR 1959 mys. 39. On a consideration of this submission, the 1 appellate court has pointed out that even the smallest interest in the mortgaged property is sufficient to entitle the plaintiff to redeem the mortgage. What would be the rights of the other mortgagors are also referred to therein. I find that in the context of the reasons reflected in the said decision there is no substance in the contention raised by the learned Advocate for the appellant. In this view of the matter, I have no hesitation in answering substantial question No. 5 by holding that the suit filed by the plaintiff alone is maintainable. ( 19 ) IF that be so, the only other point which falls for consideration of this court is as to whether the finding of the i appellate court with reference to the improvements said to have been effected is not in accordance with law? Before answering that question it is necessary to see as to under what circumstances, the mortgagee is entitled to the costs of an improvement made by him in the mortgaged property. In this context, the Provisions of Section 63-a of the Transfer Of Property Act would be relevant for consideration. Section 63-a reads as under:" (1) where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, been improved, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled to the improvement; and the mortgagor shall not, save only in cases provided for in sub-section (2), be liable to pay the cost thereof. (2) where any such improvement was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor shall, in the absence of a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum, and the profits, if any, accruing by reason of the improvement shall be credited to the mortgagor. "in order that a mortgagee may be entitled to the costs of an improvement made by him on the mortgaged property it must be shown that (1) it was necessary to preserve the property from destruction or deterioration, or (2) it was necessary to prevent the security from becoming insufficient, or (3) it was made incompliance with the lawful order of any public servant or public authority. the object of the restriction is to 'prevent the mortgagee from improving the property in such a way as to make it utterly impossible for the mortgagor, with his means, ever to redeem it; in other words, from "improving the mortgagor out of his estate. " where, therefore, the improvements made by the mortgagee are not covered by sub-section (2), the mortgagor is entitled to the improvements without payment of the cost thereof to the mortgagee and the mortgagee or his assignee is debarred even from removing the materials of the improvements made by them on the property. ( 20 ) FROM what is stated hereinabove, it is clear that if the property is in danger of deteriorating the same would also constitute a ground to enable the mortgagee to effect improvement and to recover costs in that behalf from the mortgagor. ( 21 ) IT is, therefore, necessary to see as to whether the evidence on record warrants a conclusion that the property was in danger of deteriorating. The tenor of the judgment of the learned munsiff indicates that he has reached such a conclusion. The learned civil judge, however, docs not appear to have adverted his attention specifically to this aspect. The tenor of the judgment of the learned munsiff indicates that he has reached such a conclusion. The learned civil judge, however, docs not appear to have adverted his attention specifically to this aspect. In that view of the matter, this court has perused the evidence on record, with a view to re-appraise the evidence. D. w. 1-abdulrasoolsab chamanasab phaniband, has in the course of his evidence stated that even at the time when the mortgage was executed in his favour, the suit house was in a dilapidated condition. D. w. 2-hanumantasa shambosa aravatgi has in the course of his evidence slated that one room of the house was in a wholly bad condition and the other room of the house was not in such a bad condition. He has also stated that the house had mud wall. The evidence of P. W. 1-ruth is not of much significance having regard to the fact that she came to the scene only later as a purchaser of the property from the erstwhile owners. Further, the evidence of d. w. 1 and d. w. 2 is rendered probable in the context of the recital in ex. P. 3. As noticed earlier, in ex. P. 3 among other things, it is recited that the external ( slisdftrf ) repairs were required to be effected by the mortgagors themselves. The question of external repairs would come for a mention in the document if and if only the house in question needed external repairs. Further, P. W. 2 who would have been a competent witness to speak in this behalf was given up, even before his cross-examination was completed. If, therefore, the oral evidence and circumstantial evidence is appreciated in totality the same would indeed point to a conclusion that the mortgaged property was in a state of deterioration. Further, exts. D. 2, d. 3, d. 4 and d. 5 would render probable, the evidence of d. W. 1 and d. w. 2, that improvements in fact, were effected. I hasten to add here that the documents referred to immediately hereinabove, that is to say, the notices issued by the municipality and another document at ex. D. 5, may not by themselves establish the version of the defendant with reference to the improvements effected, but if they are appreciated in conjunction with the oral evidence of d. Ws. I hasten to add here that the documents referred to immediately hereinabove, that is to say, the notices issued by the municipality and another document at ex. D. 5, may not by themselves establish the version of the defendant with reference to the improvements effected, but if they are appreciated in conjunction with the oral evidence of d. Ws. 1 and 2 it should not be difficult to reach a conclusion that improvements were effected to the house in question by the defendant-appellant. In other words, the oral evidence of d. ws. 1 and 2 stands corroborated by the documentary evidence reflected in exts. D. 1 to d. 5. The learned civil judge, in the opinion of this court, has not considered this question from this perspective, with the result, his conclusion in this behalf is rendered erroneous. ( 22 ) FROM what is stated hereinabove, it is clear that the claim of the defendant (alternative claim) would squarely fall within the compass of Section 63-a (2) of the Transfer Of Property Act. If that be so, the next question for consideration is as to the amount which the defendant can be said to have spent in that behalf. It is needless to say that the burden in this behalf is on the defendant. As rightly pointed out by the i appellate court, defendant-appellant has not produced any documentary evidence like vouchers, bills, etc. However, on that count alone it is not proper to throw overboard the claim of the defendant in that behalf. Such a course if adopted would result in manifest to injustice. ( 23 ) IT is the duty of the court to arrive at a proper figure in such a situation takingin to consideration the various factors. The learned munsiff has arrived at a figure of Rs. 4000/ -. It is not unusual for a party to the litigation to indulge in exaggeration to his own advantage. As pointed out earlier, defendant has not maintained any vouchers. Further it is seen that the property itself was sold to the plaintiff in the year 1981 for a sum of Rs. 4000/ -. In that context to hold that the improvements were effected by incurring an expenditure of Rs. 4000/- as has been held by the learned munsiff, would be unrealistic. Further it is seen that the property itself was sold to the plaintiff in the year 1981 for a sum of Rs. 4000/ -. In that context to hold that the improvements were effected by incurring an expenditure of Rs. 4000/- as has been held by the learned munsiff, would be unrealistic. Under these circumstances, the court will have to arrive at a reasonable figure taking into consideration the various factors in conjunction. At this juncture, it is indeed necessary to note here that the mortgage amount itself was Rs. 1500/ -. The property was mortgaged for that sum. The security needed by the defendant was also to that extent. Under these circumstances, it would be highly unreasonable to assess any amount over and above the said amount as in that case the cost towards improvement would be unreasonable, in the facts and circumstances of the case and more so having regard to the infirmity in the evidence of the defendant, as pointed out earlier. Further, the nature of the improvement effected is also not quite clear. Taking into consideration of this aspect, including the evidence of d. w. 1 and d. w. 2 and adopting the method of reasonable approximation I am of the view that it would be just and proper to arrive at the figure of Rs. 1000/- towards cost of improvement effected to the suit property. As pointed out earlier, defendant's claim in this behalf would fall within the provision of Section 63- a (2) of the Transfer Of Property Act. Hence, defendant-appellant is entitled to receive the said amount of Rs. 1000/- together with interest at 9% on the said sum from the date of the suit till payment, in addition of course to the principal loan amount of Rs. 1500/ -. This is apart form the amount of Rs. 88-98 ps. Substantial question No. 4 is answered accordingly. ( 24 ) IN the result, r. s. a. No. 700/1989 preferred against the judgment and decree passed in r. a. No. 43/1987 by the civil judge, gadag, is dismissed. The judgment and decree of the i appellate court in that behalf are confirmed. R. s. a. No. 701/1989 preferred against the judgment and decree passed in r. a. No. 44/1987 by the civil judge, gadag, is partly allowed. The judgment and decree of the i appellate court in that behalf are confirmed. R. s. a. No. 701/1989 preferred against the judgment and decree passed in r. a. No. 44/1987 by the civil judge, gadag, is partly allowed. The judgment and decree passed by the civil judge, gadag in so far as he has set aside the decree of Rs. 4000/- granted by the trial court towards the cost of construction with interest at 9% p. a. from the date of the suit till the date of payment is hereby set aside. Instead, it is hereby ordered that the plaintiff-respondent in addition to the principal loan amount of Rs. 1500/- shall also pay an amount of Rs. 1000/- together with interest at the rate of 9% p. a. from the date of the suit till payment, apart from the amount of Rs. 88-98 ps. The judgment of the munsiff, gadag in that behalf stands modified accordingly. ( 25 ) FOR the sake of clarification it is hereby ordered that the judgment and decrees passed by the learned civil judge in all other respects are hereby confirmed. ( 26 ) IN the facts and circumstances of the case, both the parties are directed to bear their own costs in both the appeals -. ( 27 ) THE original judgment shall be kept in r. s. a. No. 700/1989 and an authenticated copy thereof shall be kept in r. s. a. No. 701/1989. --- *** --- .