dedol-hf/india-case-legal-rag huggingface dataset:
by him but he clearly washed his hands of the matter by  his
letter  of  the 3rd/4th December, 1947,  and  referred   the
petitioner  to Government under whose orders he said he  was
acting. The demand made to Government and the denial by them
were therefore in substance a demand made to the Commission-
er and a denial by him.
    In  any  event, an evasion or shelving,of a  demand  for
justice  is  sufficient to operate as a  denial  within  the
meaning  of section 46.  In England the refusal need not  be
in so many words  All that is necessary is to
152
show that the party complained of has distinctly deter mined
not  to do what. is demanded (See 9 Halsbuy's Laws  of  Eng-
land, Hailsham edition, page 772).  And in the United States
of America a demand is not required "where it is manifest it
would be but an idle ceremony" (See Ferris on  Extraordinary
Legal Remedies, page 281).  The law in India is not  differ-
ent  except  that there must be a demand and a    denial  in
substance though neither need be made in   so many words The
requirements of section 46 were therefore fulfilled.
The result is that in substance" the appeal fails though
it  will be necessary to effect a modification of  the  High
Court's  order. The High Court directed the Commissioner  of
police to
    "Withdraw the order of cancellation passed by him."
    We  have  held that he did not make the order  and  that
even  if  he  did, a direction of that sort  would  not  lie
because  of  the discretion vested in him by Rule  250.  The
following will accordingly be substituted for what the  High
Court has ordered:
The  Commissioner of Police be directed to consider  the
requests  made to him for cancellation of the license  sanc-
tioned  by his letter dated the 14/16th of July, 1947,  and,
after weighing all the different aspects of the matter,  and
after  bringing to bear his own unlettered judgment  on  the
subject,  himself to issue a definite and unambiguous  order
either  canceling or refusing to cancel the said license  in
the  exercise  of the absolute discretion vested in  him  by
Rule 250 of the Rules for Licensing and Controlling Theaters
and  Other  Places of Public  Amusement   in   Bombay  City,
1914.
    As  the appeal fails except for the slight  modification
indicated  above, the appellant  will pay  the  respondent's
costs.
                 Decree modified.
 Agent for the appellant: P.A. Mehta.
 Agent for the respondent: Rajinder Narain.
153
PETITIONER:
BADRI NARAIN JHA AND OTHERS
        Vs.
RESPONDENT:
RAMESHWAR DAYAL SINGH AND OTHERS.
DATE OF JUDGMENT:
05/02/1951
BENCH:
MAHAJAN, MEHR CHAND
BENCH:
MAHAJAN, MEHR CHAND
FAZAL ALI, SAIYID
MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  186            1951 SCR  153
 CITATOR INFO :
 RF         1985 SC1118  (10)
 D          1988 SC1365  (6)
 RF         1991 SC 899  (6)
ACT:
Landlord  and  tenant--Merger--  One  of  several  joint
holders of mokarrari interest  acquiring portion of  lakhraj
interest--No   merger--Partition   amongst   lessees   inter
se--Integrity of lease qua lessor, not affected.
HEADNOTE:
  If a lessor purchases the whole of the lessee's  interest,
the  lease  is extinguished by merger, but there can  be  no
merger  or extinction where one of several joint holders  of
the  mokarrari  interest purchases portion  of  the  lakhraj
interest.
A partition inter se amongst several mokarraridars does
not  in any way affect the integrity of the tenancy or  make
each  holder  of an interest in it a separate  holder  of  a
different  tenancy, and notwithstanding such  partition  the
mokarraridars  remain liable qua the lessor for the  payment
of the whole rent as one tenant.
White v. Tyndall (13 App. Cas. 263) referred to.
JUDGMENT:
    CIVIL  APPELLATE JURISDICTION:  Appeal from  a  judgment
and  decree of the High Court of Judicature at  Patna  dated
14th February, 1946, in Appeal from Original Decree No.  117
of  1942  arising  out of Title Suit No. 9  of  1939:  Civil
Appeal No. 40 of 1950.
S.C. Misra for the appellant.
    N.C.  Chatterjee (P. B. Gangoli, with him) for  the  re-
spondent.
154
    1951.  February 5. The judgment of the Court was  deliv-
ered by
    MAHAJAN J.--This appeal arises out of Suit No. 9 of 1939
instituted in the Court of the Subordinate Judge of  Palamau
by  the appellants against the respondents for a  number  of
declarations  in respect to the title to certain  lands  and
for an injunction restraining the respondents from  proceed-
ing with a rent suit.  The suit was decreed by the  Subordi-
nate  Judge but on appeal this decision was reversed by  the
High  Court of Judicature at Patna and the appellants'  suit
was dismissed.
    The  salient facts of the case are as follows:   Village
Darha  belonged  to a family of Pathaks as  their  ancestral
lakhraj.   Over a hundred years ago the Pathaks granted  the
entire  village in mokarrari to the ancestors of the  family
of  Singhas  (defendants' first and second  parties)  at  an
annual  jams of Rs. 24.  The mokarrari  interest  eventually
devolved on three branches of the Singha family, each branch
getting in the following proportions: Parameshwar Dayal  and
others, defendants' first party, to the extent of six annas;
Bisheswar  Dayal  Singh, defendants' second  party,  to  the
extent of eight annas; and Madho Saran Singh, to the  extent
of  two  annas.  Subsequently, the two anna share  of  Madho
Saran  Singh  was purchased by Hiranand Jha, father  of  the
plaintiffs,  jointly with. Durganand Jha and  Dharam  Dayal.
Dharam Dayal was a mere benamidar for Hiranand Jha.
    On the 5th June, 1916, Bisheshwar Dayal Singh  purchased
six  anna share in the lakhraj interest from  Deolal  Pathak
and  others  and  on the 9th February,  1917,  he  purchased
another  two  anna share from Mandil Pathak.  By  virtue  of
these  purchases he came to own the lakhraj interest to  the
extent  of eight anna share.  He-already held the  mokarrari
interest  to  the same extent which had devolved on  him  by
inheritance.
    Some  time  in the year 1917 or 1918  Hiranand  Jha  and
Durganand Jha, who had acquired by purchase two anna  mokar-
rari interest of Madho Saran Singh,
155
purchased in execution of a rent decree the raiyati interest
in  the whole village and came into possession of  it.  They
thus  became mokarraridars of two anna share and raiyats  of
sixteen annas of the village lands.
    In  the year 1918, Title Suit No. 59 of 1918 was  insti-
tuted  in the court of the Subordinate Judge of Palamau  for
partition  of  the  lands situate in  several  villages  and
belonging to the family of the defendants' first and  second
parties. The Jhas were impleaded as defendants in' the suit,
being co-sharers in part of the property in suit.  This suit
was decreed in the year 1921, and in the final partition  an
allotment  of two annas share in Darha village was  made  in
their  favour. The remaining fourteen anna  share  excluding
khatian  1,  3 and 6 was allotted to the  defendants'  first
party.  These  three khatians were  allotted  to  Bisheshwar
Dayal  Singh and in exchange for the remaining  portions  of
his  interest in that village he was given some property  in
village Holeya. The result of the partition proceedings  was
that the defendants' first party came to hold fourteen  anna
mokarrari  interest  in  village  'Darha,  Bisheshwar  Dayal
Singh's interest was limited to three khatians only, and the
Jhas  got a separate allotment for their two anna  share  in
the  mokarrari.   It appears that some time about  the  year
1926  the  lakhraj interest holders, i.e., the  Pathaks  and
Bisheshwar  Dayal Singh, were in default in the  payment  of
the  cess due to Government. On the 17th August, 1926,  pro-
ceedings  were taken against them for recovery of  the  cess
and their interest was sold in execution of a certificate on
the  18th October, 1927, to one Bijainandan Sahay. The  sale
obviously  was of the lakhraj interest.  This was  confirmed
on  the  19th  December, 1927, and a  sale  certificate  was
issued on the both March, 1928.  This was followed by deliv-
ery  of  possession on 15th July, 1928. Possession  was  ob-
tained  by one Kamta Prasad who had acquired  this  interest
from  Bijainandan Sahay on the 20th April, 1928. On the  1st
May,  1933,  Kamta Prasad transferred his  interest  in  the
village  to  the plaintiffs who thus became  proprietors  of
sixteen  anna share in the village and mokarraridars  as  to
two anna
156
share  and raiyats of the entire sixteen annas in the  whole
village.
    On the 21st September, 1934, the defendants' first party
as  mokarraridars brought a suit against the plaintiffs  for
arrears  of  raiyati rent for the years 1338-39  F.  to  the
extent of six annas share and for the years 134041 F. to the
extent of fourteen anna share claiming that under the parti-
tion decree they got a fourteen anna share in the  mokarrari
interest  in  the  village. Plaintiffs  contested  the  suit
alleging-that Bisheshwar's mokarrari interest had merged  in
the  lakhraj  interest that was purchased by  him  from  the
Pathaks in the years 1916-17, and that by the sale under the
Government's  certificate his whole eight anna  interest  in
the village including both the lakhraj and the mokarrari had
passed  on to the plaintiffs and that the defendants'  first
party  could only claim rent from them to the extent of  the
six  anna share in the mokarrari.  This plea was  disallowed
and the defendants' first party's claim for rent was decreed
in full. The decree was upheld on appeal and second  appeal.
The  question of title was, however, left open. In the  year
1938  another  suit for rent was filed  by  the  defendants'
first party as mokarraridars to recover fourteen anna  share
of  the  rent for the years subsequent to fasli 1341.  As  a
result of this suit, the plaintiffs brought the present suit
for  declaration and injunction on the allegation  that  the
eight anna mokarrari interest of Bisheshwar Dayal Singh  had
merged in his lakhraj interest, that by the certificate sale
Bisheshwar Dayal Singh lost all his interest in the  village
both  lakhraj  and mokarrari by reason of merger,  that  the
partition  decree  of the year 1921 was illegal and  in  any
case, under that decree the defendants' first party got only
six  anna  mokarrari interest and were entitled  to  realize
rents  from the tenants only to that extent.  An  injunction
was also claimed restraining the defendants from  proceeding
with the rent suit. In the plaint, it was alleged that there
was a private partition between the mokarraridars by  virtue
of which the lands of village Darha were divided between the
three sets of mokarraridars, each set being
157
in  separate  possession  of its own  separate  and  defined
shares.   It was also pleaded that there was another  parti-
tion  between the proprietors of the lakhrai interest,  that
is,  between  Bisheshwar  Dayal Singh on the  one  hand  and
Deolal  Pathak,  Neman Pathak and Surajnath  Pathak  on  the
other,  by virtue of which the lands that were in  mokarrari
patties  of Parmeshwar Dayal Singh and others  and  Hiranand
Jha and Durganand Jha fell in the patti of Deolal Pathak and
others, while, the lands that were in the mokarrari patti of
the defendants' second party fell in his proprietary lakhraj
patti and that as a result of these partitions the mokarrari
interest  of  the  defendants' second party  merged  in  his
lakhraj  interest and under a certificate sale the whole  of
his interest passed to the plaintiffs.
    The trial Judge held that both the partitions alleged by
the  plaintiffs in paragraphs 5 and 8 of their  plaint  were
proved  and that the mokarrari interest of Bisheshwar  Dayal
Singh merged in his lakhraj interest and that at the certif-
icate sale the purchaser acquired his complete interest both
lakhraj  and  mokarrari along with the  eight  anna  lakhraj
interest of the Pathaks and that the defendants' first party
were  mokarraridars of six anna interest in the village  and
to that extent were entitled to a decree in their rent  suit
and  could  not  claim a decree for rent to  the  extent  of
fourteen  anna  share.  The High Court in appeal  held  that
none of the partitions alleged by the plaintiffs were proved
and  that  the mokarrari interest of eight annas  could  not
merge in the lakhrai interest of sixteen annas held  jointly
by  Bisheshwar Dayal Singh with the Pathaks. As a result  of
this decision the plaintiffs' suit was dismissed.
    In  this appeal it was contended by the learned  counsel
for the appellants that the High Court had erroneously  held
that  the two partitions set up by the plaintiffs  in  para-
graphs  5 and 8 had not been proved. It was argued that  the
evidence  on  the record, both documentary and  oral,  fully
established the fact of the two partitions and that in  view
of these partitions it should have been held that Bisheshwar
Dayal Singh
158
became separate owner of eight anna lakhraj interest and  in
that interest his mokarrari interest of eight annas  merged,
and that under the certificate sale the whole of this inter-
est  passed on to the purchaser in execution and that  being
so,  the defendants' first party could only maintain a  suit
for recovery of rent from the raiyats to the extent of their
six anna mokarrari interest.
    In  our  opinion, this appeal can be disposed  of  on  a
short point without taking into consideration the respective
contentions of the parties raised before us or urged in  the
two courts below.  The plaintiffs' case rests solely on  the
allegation  of merger of the eight anna lakhraj interest  of
Bisheshwar  Dayal Singh with his mokarrari interest  to  the
same  extent.  It, however, seems to us that  there  was  no
scope  for the application of the doctrine of merger to  the
facts  disclosed by the plaintiffs in their plaint.  If  the
lessor  purchases the lessee's interest, the lease no  doubt
is  extinguished as the same man cannot at the same time  be
both a landlord and a tenant, but there is no extinction  of
the  lease  if one of the several lessees purchases  only  a
part of the lessor's interest.  In such a case the leasehold
and  the reversion cannot be said to coincide.  It  was  the
plaintiffs'  case that mauza Darha was orginally granted  in
mokarrari  under  a single contract of lease and it  was  by
inheritance  that  the lessee's interest devolved  on  three
branches  of the family, Bisheshwar Dayal Singh  getting  an
interest  of eight annas in the whole of the leasehold.   He
then  purchased a six anna interest in the entire  reversion
in the year 1916 and another two anna interest in it in  the
year 1917. By these purchases he became a joint owner in the
entire  lakhraj  holding  to the extent of  a  moiety.   He,
however,  never came to own the entire lakhraj  interest  in
the village or the entire mokarrari interest therein.  There
was  thus no coalescence of the interest of the  lessor  and
the  lessee in the whole of the estate which was subject  to
lakhraj  and  mokarrari  interests and that  being  so,  the
mokarrari  interest of Bisheshwar Dayal Singh did not  merge
in his lakhrai interest.
159
    Mere  purchase by Bisheshwar Dayal Singh of portions  of
the lakhrai interest could not bring about an extinction  of
the  lease or break its integrity as he was only one of  the
several joint holders of the mokarrari interest. An inter se
partition  of the mokarrari interest amongst the  mokarrari-
dars  as alleged by the plaintiffs could not   affect  their
liability qua the lessor for the payment of the whole  rent,
as  several  tenants of a tenancy in law  constitute  but  a
single  tenant,  and qua the landlord  they  constitute  one
person,  each  constituent part of which  possesses  certain
common rights in the whole and is liable to discharge common
obligations in its entirety.  In the words of Lord  Halsbury
in White v. Tyndall(1), the parties to whom a demise is made
hold  as tenants in common but what they covenant to pay  is
one rent, not two rents and not each to pay half a rent  but
one  rent.   There is a privity of the  estate  between  the
tenant and the landlord in the whole of the leasehold and he
is  liable for all the covenants running with the land.   In
law,  therefore,  an  inter se partition  of  the  mokarrari
interest could not affect the integrity of the lease and  it
could  not  be said that Bisheshwar Dayal  Singh  under  the
alleged  partition became a mokarraridar under another  con-
tract  of  lease.  Such partitions amongst  several  lessees
inter  se are usually made for convenience of  enjoyment  of
the leasehold but they do not in any way affect the integri-
ty  of the tenancy or make each holder of an interest in  it
as a separate holder of a different tenancy. In the  present
case  there was not even an allegation that the tenancy  was
severed  and the several tenancies came into existence as  a
result  of  the partition qua the  landlord.  Similarly  the
allegation of partition inter se among the several owners of
the lakhraj holding could not in any way affect the integri-
ty  of the lease in the absence of an allegation of a  fresh
contract between the split up owners of the holding and  the
different  owners  in the mokarrari interest.   The  lakhraj
holding in the village still remains a single holding and it
was not alleged that it was split up in different  holdings.
'All owners
(1) 13 App. Cas. 263
21
160
of the lakhraj interest are jointly responsible for  payment
of  the cess to Government and it was because of  their  de-
fault in payment of the cess that the whole lakhraj interest
was sold in the certificate sale.  In this situation none of
the conditions necessary for the application of the doctrine
of merger can be said to have been made out by  the  allega-
tions  made in the plaint.  On the plaintiffs' own case  the
lease is still a live one in respect of the six anna  inter-
est  of  the defendants' first party and  in  these  circum-
stances  it is not possible to hold that it has  become  ex-
tinct  to  the extent of eight anna interest  of  Bisheshwar
Dayal Singh in the absence of any allegation that any  fresh
contract,  express  or implied, was arrived at  between  the
parties.   The leasehold has not in any way been drowned  in
the  reversion and both lakhraj and mokarrari  interest  are
still intact.
    For  the reasons given above we agree with the  decision
of the High Court that Bisheshwar Dayal Singh's interest  in
the   mokarrari  did not merge in his lakhraj  interest  and
that  under  the  certificate sale it did not  pass  to  the
execution  purchaser;  on the other hand, it vested  in  the
defendants'  first party by reason  of the family  partition
and  they became entitled as mokarraridars to  recover  rent
from the plaintiffs' raiyats to the extent of fourteen annas
share. All that passed at the certificate sale to the execu-
tion purchaser and subsequently to the plaintiffs was merely
the lakhraj interest of the Pathaks and of Bisheshwar  Dayal
Singh  and it could not be that at this sale qua  one  judg-
ment-debtor  a larger interest passed to the execution  pur-
chaser than in respect of the other debtor.  In view of  our
decision  that the doctrine of merger has no application  to
the  facts  of the case, the plaintiffs' case  is  bound  to
fail. We accordingly hold that there is no substance in this
appeal and we dismiss it with costs. Appeal dismissed.
Agent for the appellant: S.P. Varma.
Agent for the respondent: P.K. Chatterjee.
161
PETITIONER:
THE STATE OF ORISSA
        Vs.
RESPONDENT:
MADAN GOPAL RUNGTA.THE STATE OF ORISSAV.ARJUN LADHA.THE STAT
DATE OF JUDGMENT:
25/10/1951
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
 1952 AIR   12            1952 SCR   28
 CITATOR INFO :
 F          1962 SC1044  (5)
 R          1962 SC1305  (22)
 R          1964 SC 685  (10)
R          1965 SC 745  (137)
 R          1966 SC1441  (4)
 E          1968 SC 733  (9,10)
 RF         1973 SC2720  (9)
 RF         1975 SC2238  (19)
 F          1976 SC 578  (33)
 RF         1980 SC 962  (59)
 F          1983 SC1272  (10)
ACT:
    Constitution  of  India, Art. 226--Writs  granting  more
interim  relief  pending institution of civil  suit  without
deciding rights of parties--Legality.
HEADNOTE:
    The High Court cannot make a direction under Art. 226 of
the Constitution for the purpose of granting interim  relief
only  pending the institution of a suit merely  because  the
suit  could not be instituted until after the expiry  of  60
days  from the date of a notice under Sec. 80 of  the  Civil
Procedure Code and in the meanwhile, unless protected by the
Court the applicant may suffer irreparable loss.
    Even  though  writs  can be issued under  Art.  226  for
purposes  other than the enforcement of fundamental  rights,
the  concluding words of the article have to be read in  the
context  of what precedes the same, and the existence  of  a
right  is the foundation of the exercise of jurisdiction  of
the Court under this article.
    An interim relief can be granted only in aid of, and  as
ancillary to, the main relief which may be available to  the
party  on  final determination of his rights in  a  suit  or
proceeding.
29
JUDGMENT:
    CIVIL  APPELLATE JURISDICTION: Cases Nos. 300 to 304  of
1951.
    Appeals  under Art. 132(1) of the Constitution of  India
from  a. judgment dated 2nd August, 1951, of the High  Court
of  Judicature  at Orissa (Ray C.J. and  Narasimham  J.)  in
Miscellaneous   Judicial  Cases Nos. 126, 127, 128, 129  and
130 of 1951.
    M.C. Setalvad, Attorney-General for India (G. N.  Joshi,
with him) for the appellant in all the appeals.
N.C.  Chatterjee (H.J. Umrigar and A.N. Roy,  with  him)
   for the respondent in Case No. 300 of 1951.
    Roshan  Lal  for the respondents in Cases Nos.  301  and
304.
    N.C. Chatterjee (A. N. Roy, with him) for the respondent
in Case No. 302 of 1951.
  N.C.  Chatterjee (A. N. Roy and A.N. Sinha, with him)  for
the respondent in Case No. 303 of 1951.
    1951.  October  25.  the  Judgment  of  the  Court   was
delivered by
    KANIA  C.J.--These are five companion appeals  from  the
judgment  of  the High Court at Orissa,  delivered  on  five
petitions filed by the respondent in each of the appeals, to
obtain  from the Court a writ of mandamus and/or  directions
under article 226 of 'the Constitution of India.
    Each  of the respondents alleged that between  1941  and
1947  he  had agreed to take from the Ruler  of  Keonjhar  a
mining  lease and had entered into possession of  the  area.
Some of the petitioners alleged that they had spent money on
the development of the mines and installed machinery to work
the  same.   It is however common ground that there  was  no
registered lease in favour of any of the respondents  before
1947.   On  the 14th December, 1947, the Ruler  of  Keonjhar
entered  into a merger agreement with the Dominion of  India
and  as from the 1st January, 1948, the State was merged  in
the  Dominion of India. After signing the  merger  agreement
the Ruler gave registered
30
leases  on  the 27th December, 1947, to the  respondents  in
these  appeals.  In pursuance of the exercise of the  powers
conferred  on the Government of Orissa by section 4  of  the
Extra Provincial Jurisdiction Act, 1949, read with Notifica-
tion No. 172/1B dated 23rd March, 1948, of the Government of
India, the Government of Orissa issued a notification  dated
the  8th  of  June, 1949, declaring, inter  alia,  the  said
leases to be void and not binding on it. This annulment  was
made expressly on the ground that these commitments were not
reasonable and bona fide. Thereafter, the respondents, along
with  others approached the Orissa Government to  give  them
leases and the State Government gave them temporary  permits
to work the mines in November, 1949.  On the 3rd July, 1951,
however  they passed an order cancelling the temporary  per-
mits  and  directed the respondents to remove  their  assets
appertaining to the respective mines within a fortnight. The