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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

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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

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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

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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

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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-

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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