Bhagwati and Others vs State of U.P. and Others

N.N. Sharma, J.—Both these cases are being disposed of by this common order as they arise out of the order dated 4-12-1982 by Sri R.C. Gupta, learned II Additional Sessions Judge, Jaunpur in Criminal Revision No. 49 of 1981. Learned Sessions Judge allowed Criminal Revision No. 49 of 1981 and dismissed Criminal Revision 4:51 PM 1/17/2011No. 50 of 1981. The order of learned Sub Divisional Magistrate, Kerakat, district Jaunpur dated 6-3-1981 In criminal case No. 67 of 1979, u/s 145, Code of Criminal Procedure was reversed; opposite parties who were party No. 2 in the proceedings viz. Ramadhar, Kedar, Ram Lal, Bhagwati, Smt. Shyam Devi wife of Munni Lal were declared to be in possession over the plots in dispute on and within two months before the date of passing of the preliminary order dated 27-6-1979. They were found entitled to get possession of the disputed holding from the Supurdar. Learned SDM was ordered to direct the Supurdar to deliver possession to second party by impugned order dated 4-12-1982.

It appears that parties are residents of village Hatwa, police station Chandwak, district Jaunpur.

Dispute relates to possession over plot No. 91 Aa measuring 1.57(1)91 Ba (area .26), 116 area .23 situate in village Hatwa and plots No. 198 Aa area 22, 198 Ba area 0.05 situate in village Parsupur, police station Chandwak, district Jaunpur.

Following pedigree which was not controverted before me shows relationship of first party viz. Bhagwati, Vikerma and Sharda with Ram Swarath Pandey.

Deo Narain | ---------------------------------------- | | Sheo Mangal Rampher Pandey | | ------------------------ Ram Swarath Pandey | | | Sharda Vikerma Bhagwati (First Party) 5. It is alleged that the third party viz. Luxmi Narain Pandey is also connected with his family.

These proceedings were initiated by Bhagwati, Vikerma and Sharda on the application submitted on 21st June, 1979 u/s 145 Code of Criminal Procedure in the Court of SDM Kerakat alleging that Ram Swarath Pandey was joint in mess and cultivation with them. He has not been heard of for the last 15 or 16 years and as such he met a civil death. Since then first party were in possession over the disputed holding; lentil crop sown by them was standing on the land. Opposite party Ramadhar, Kedar, Ram Lal, Smt. Bhagwati Devi and Shyam Devi (second party) got a fictitous sale deed of the said holding executed in their favour on 15-12-78 from an imposter who personated as Ram Swarath aforesaid. On the strength of that sale deed they were attempting to take forcible possession over the disputed holding. There was an apprehension of breach of peace and so initiation of proceedings u/s 145, Code of Criminal Procedure was essential. There was a prayer for attachment of the said holding and for giving it in the custody of some independent person.

On this application Naib Tehsildar Dobhi was required to submit a report under orders of SDM. The report of Naib Tehsildar is dated 24-6-1979 indicating that there was an apprehension of breach of peace amongst the parties. A preliminary order was drawn by SDM on 27-6-1979.

Written statements were invited. Second party submitted a written statement controverting the aforesaid allegations. It was alleged that Ram Swarath was alive; he was in military service and after being relieved, he joined as Security Guard in Hindustan Photo Film, Indu Nagar in Tamil Nadu and was residing there. He sold the disputed holding for a sum of Rs. 35,000/- to second party through a registered sale deed; Ram Swarath was sole Bhumidhar in possession of the disputed holding at the time of the execution of that sale deed; delivered possession of disputed holding to the vendees who are in cultivatory possession over the same. It was also alleged that alias of Ram Swarath Pandey was also Sudhakar Pandey. They were in peaceful possession over the plots in dispute and there was no apprehension of breach of peace.

Learned SDM ordered attachment of disputed holding on 14-10-1979. The plots were given in the custody of one Rajmani Yadav.

On 2-11-1979 one Luxmi Narain, son of Kuber Pandey (third party) came forward with an application that Ram Swarath Pandey borrowed a sum of Rs. 5000/- from him on 8-6-1968 and executed a pronote and receipt in his favour; Ram Swarath Pandey also placed him in possession over the disputed holding in lieu of interest and since then they were in cultivatory possession of that holding. On their request they were also impleaded as a party to the proceedings on 20-3-1980. Their written statement was also placed on record.

In support of their assertion first party examined Suraj Narain Pandey, Mohd. Rafiq Khan, Naib Tehslldar and Vikerma. Rafiq Khan, Naib Tehsildar had no personal knowledge in the matter but proved his report Ext. Ka. 3. It was based on the statements of Ramadhar and Vikerma Pandey. He conceded that prior to local inspection on 21-6-1979, he had not seen this holding.

Swaraj Narain Pandey and Vikerma Pandey testified in support of the case of first party a laid above.

Second party examined vendor Ram Swarath, Ramadhar and Ram Deo Pal attesting witnesses of the registered sale deed executed by Ram Swarath in their favour. Ram Swarath further testified that be was not an imposter. He joined in military service in 1961 and was discharged from military service and thereafter took employment with Hindustan Photo Film Indunagar, Tamil Nadu as security guard and was residing there. He denied to have renounced the world. He further stated that he was known as Sudhakar and had tattoo marks ''Sharmaji'' on his arm. In Tamil Nadu he married a brahmin girl and had issues. He further testified about his cultivatory possession over the disputed holding which was bis exclusive property; he sold the same to the second party for a sum of Rs. 35000/-and delivered possession of the plots to second party. First party were never in possession of the disputed holding.

Second party also filed copies of Khasra and Khatauni to show that throughout name of Ram Swarath was recorded as Bhumidhar in possession and after execution of the sale deed the names of the vendees were recorded over the plots.

Third party viz. Luxmi Narain Pandey filed photostat copy of pronote dated 8-6-1968 and examined himself and Bankey Behari in support of his assertion.

Learned Magistrate discarded the cases of second and third party and held first party as in possession over the plots in dispute.

In the result he declared first party in possession over the disputed holding and forbade second and third party from interfering with the possession of the first party. Both the revisions were filed against this order by second and third party which were disposed of by the impugned order.

I have heard learned Counsel for the parties and perused the record. I may dispose of the case of third party first because both the courts below through their concurrent findings of fact repelled the contention of third party that he was in possession over the disputed holding in lieu of loan advanced by him on 8-6-1968.

Sri S.K. Singh, learned Advocate for third party argued before me that learned SDM was led away by the circumstance that original pronote and the receipt were withheld. He pointed out that on 20-3-80 learned SDM himself permitted third party to file photostat copy of pronote in question and so the non production of original pronote was immaterial.

Ram Swarath Pandey in his statement emphatically denied to have ever borrowed any amount from Luxmi Narain Pandey; he also denied to have executed any pronote in favour of third party. He also denied the possession of third party over the disputed holding. The learned Magistrate as well as the Sessions Judge rightly pointed out that in the absence of original pronote and receipt such photostat copy hardly carried any weight. Even the photographer who prepared the copy has not been examined.

Learned Advocate for third party further pointed out that non-production of scribe Nand Kishore as well as the witness of the pronote Umapati should not have operated to the prejudice Of third party as they had colluded with second party.

As regards the non production of any Khasra entry or rent receipts etc. it was pointed out that possession of third party was amply made out by the testimony of witnesses produced by him. Both the courts below have discarded the oral testimony. In this connection reliance was placed on Liladhar v. Siaram reported in 1976 AWC 64 page 64 which laid down that unregistered document (sale deed) can be taken into consideration for seeing the possession of the party entering into possession on its basis. This ruling is not in point. There is no sale deed in favour of third party nor his possession was proved in the case. The alleged pronote which did not see the light of the day is not a sale deed.

Learned Counsel for third party relied upon Smt. Bhagwatia Vs. Deputy Director of Consolidation and Others, page 47 which related to a case where Bhumidhar had executed a registered mortgage deed and placed the mortgagee in possession over the same for securing payment of rent and so it was held that such transaction would be deemed to be a sale in view of Section 164 of UP ZA & LR Act (U.P. Act No. 1 of 1951). This ruling is wide off the mark for the simple reason that a pronote is not identical with a registered mortgage deed. There was no mention in the pronote about banding over any property to third party. Learned Counsel for third party relied upon an endorsement dated 8-6-i968 on the back of the alleged receipt showing that holding was made'' over to third party in lieu of interest. It was alleged to be an admission of Ram Swarath. Ram Swarath has denied to have made any endorsement and this endorsement also has not been legally proved. The original endorsement is not on record. Had it been there it could have been sent to Expert for comparison with the writing of Ram Swarath u/s 45, Illustration (c) of Indian Evidence Act. So the primary evidence viz., original pronote, receipt and endorsement are wanting in this case. This endorsement has not been legally proved nor it could be shown to have been actually executed by Ram Swarath. Both the courts below gave good reasons to discard this evidence as bogus.

Learned Counsel for third party also relied upon Ram Naresh v. Deputy Director of Consolidation reported in 1978 RD 118 which related to a case in which Deputy Director of Consolidation Ignored the oral evidence while reversing the findings recorded in favour of Petitioner.

In the instant case oral evidence has not been ignored. Obviously every fact can be proved by oral evidence u/s 59 of Indian Evidence Act but contents of a document can be proved by primary evidence, that is, the document itself vide Sections 62 and 64 of the Indian Evidence Act. Best evidence has to be adduced to prove a fact vide Section 60 of the Evidence Act. Unless the case was covered by Section 65 which permits secondary evidence relating to documents, withholding of the original documents itself casts a reflection on the veracity of the case of third party and presumption arises against him u/s 114, illustration (g) of Evidence Act that such evidence even if adduced would have been unfavourable to him no explanation was offered as to why it was not adduced at the stage of evidence also. Third party asserted his possession over the disputed holding from 1968 and yet his name did not occur in any Khasra or Khatauni of any year nor he produced any receipt etc. In his favour. It is improbable to believe that all the Lekhpals were antagonistic to him and they did not make any entry about his possession over the disputed holding which fell in exclusive share of Ram Swarath during consolidation operations. So the case of third party has to be repelled.

As regards the first party Sri S.C. Tripathi, learned Counsel for the revisionists laid much stress on the fact that Revisional court had no jurisdiction to have disturbed the finding of possession recorded by learned SDM in favour of second party. It was a question of fact. At least revising court could have remanded the case to learned SDM and must not have made the declaration himself; much stress was also laid on the fact that opposite party No. 1 were related to Ram Swarath and have filed 18 receipts of land revenue evidencing their possession over the land in dispute; there is a report of Supervisor Kanungo dated 16-6-1979 showing lentil crop over the disputed land which was alleged to have been sown in the land by first party Ram Swarath was unheard of for 15 or 16 years and the imposter examined by the vendees should not have been believed. The testimony of Vikerma and Suraj Narain was cogent. It was further pointed out that mutation proceedings in favour of vendees were a secret affair-First party applied in between 6-1-1979 and 12-4-79 in the Court of Tehsildar, Kerakat, Naib Tehsildar, Dobhi, etc. by submitting ten applications about the mutation on the basis of sale deed but none informed them about the mutation in favour of vendees. Under these circumstances the view taken by the learned SDM should not have been disturbed by learned revising court. That view could not be regarded as unjust.

The vendees in support of their case examined Ram Swarath himself who testified about his service in Army and in Hindustan Photo Film Indunagar as a Security guard. He denied that he ever renounced the world. He explained his alias as Sudhakar and as ''Sharmaji''. He further testified about his being sole Bhumidhar of disputed holding which was allotted to him in consolidation operations. He sold his holding to second party for a sum of Rs. 35,000/- and delivered actual possession of the said plot to second party.

Oral evidence adduced by second party was supported by copies of Kharsa (from 1382 to 1386F) and Khatauni (from 1382 to 1386F) which disclosed that prior to execution of the sale deed this holding was recorded in the name of Ram Swarath as his Bbumidhari and after execution of the same second party was recorded over it. The vendees also filed original sale deed which is a registered instrument and the receipts papers No. 24/1 to 24/9 and 48/1 to 48/3 which disclosed that upto 1386F i.e. prior to passing of preliminary order land revenue of this holding was being paid in the name of Ram Swarath Pandey.

At the time of execution of the sale deed identity of executant Ram Swarath was proved by Bechu, Pradhan of the village and Sri Behari Lal, Advocate. All the revenue receipts filed by first party were in the name of Ram Swarath and none was in their name. Photostat copies of Money Order coupons were filed on 23-10-1980 per list 62/2 to show that all the receipts in the name of Ram Swarath were secured by the first party on behalf of Ram Swarath who was remitting money to them while he was away from his village posted in Army.

Learned Sessions Judge has given good reasons to discard the appreciation of evidence by learned Magistrate who over-looked Section 107 of Evidence Act which laid a burden on them to prove that Ram Swarath was dead or became a Sadhu for the last 15 or 16 years. Second party also filed certificate of service issued by Commanding Officer to show his alias as Sudhakar and his paternity as Rampher. There is also a complaint by Ram Swarath showing that during his absence in Indunagar his cousins were attempting to grab his holding by falsely alleging that Ram Swarath has met a civil death and wanted to get their name mutated over his holding. Police enquired into these allegations which were found to be correct. Ram Swarath also made representations to Tehsildar, Kerakat, Suprintendent of Police and District Magistrate Jaunpur alleging that name of first party could not be recorded over his holding. There are no record documents of suit No. 202 of 1969 of the court of Munsif, Shahganj, Jaunpur. Appeal No. 320 of 1976 filed by Smt. Shobha, report of process server on the back of summons dated 1-11-1977 showing that Ram Swarath met the process server but refused to accept the summons. This service was deemed sufficient on 12-1-1977. Appeal ended in a compromise. During these proceedings it was never alleged that Ram Swarath was dead or had renounced the world. All this shows that the case put forward by first party was simply a tissue of lies. When Ram Swarath himself entered the witness box he could not be falsified. He has successfully given the boundaries of his plots. Learned revising court rightly held that learned SDM committed a manifest error in overlooking the entire oral and documentary evidence adduced by second party which unmistakably went to disclose that Ram Swarath was very much alive and was the sole Bhumidhar of the disputed holding and had actually handed over the possession of the same to the vendees.

The circumstantial evidence on record itself supports the conclusion arrived at by the learned trial court. The vendees are co-villagers of Ram Swarath and first and third party. They could not have thrown away a heavy amount of Rs. 35,000/- to purchase this litigation by getting the sale deed executed by an imposter. They could have known that Ram Swarath was no longer alive or had renounced the world or was out of possession. Under these circumstances it is improbable to believe that they could have secured a registered sale deed from Ram Swarath. Village Pradhan Bechu or Sri Behari Lal, Advocate could not have been a party to this fraud nor they could have identified an imposter as Ram Swarath on 15-12-1978 when Ram Swarath was no longer in existence or had already renounced the world. It appears that as Ram Swarath was away from his village in connection with his service he got the rent, etc. paid through first party who allowed the egg of ambition to be hatched in their heads when this holding was sold by Ram Swarath to vendees for a sum of Rs. 35,000/-. On the basis of revenue receipts possessed by them they put forward a false case which was rightly disbelieved by the learned Revising Judge. The vendees secured mutation of the holding in their favour and made pavment of rent also. There is evidence of Ramadhar about his possession over the disputed holding. Had the first party been in possession over the disputed holding in their own right they could have procured any entry in their favour in Khasra or Khatauni or could have paid the rent in their names. There was no point in paying the rent in the name of Ram Swarath. The mere filing of such applications for enquiring about mutation, or rent receipts in the name of Ram Swarath as discussed above could not clothe them with the status of their having an independent possession over this holding. This point came up for consideration in Shri Sardar Singh v. State reported in 1967 AWR 641 which reads:

But both these cases, as also the other cases on this subject, number runs into legions, proceed upon the basis that the party claiming actual possession of the subject of dispute does so in the assertion of an independent right to possession and not on the basis of permission given to him by its owner. If the case falls under the latter category the actual physical possession of the person to whom the permission is given, such as a servant or an agent, is in law deemed to be the posssssion of the master and no order in favour of such a person can be passed u/s 14% Code of Criminal Procedure even though he might have been in possession of the subject of dispute for more than 2 months next prior to the passing of the preliminary order: See Nritta Gopal Singh v. Chandi Charan Singh 1906 10 CWN 1088, Thyalyee Ammal v. Stirangaroya Goundan AIR 1923 Mad. 60, Bajirao v. Mt. Dadabai AIR 1926 Nag. 286 , Balak Das and Another Vs. Bhagwan Das @ Bhagwan Bhagat and Another, , and Bhonrulal v. Mst. Alladi ILR (1962) Raj 6610.

Under these circumstances I do not find any infirmity or illegality in the impugned order which must stand.

No other point was raised before me.

In the result both Criminal Revision No. 2224 of 1982 and Criminal Case No. 1106 of 1983 are dismissed. Impugned order is affirmed. Stay order dated 10-12-1982 is vacated.