Bhim Bahadur Singh and another vs Emperor

Jwala Prasad, J.—This is an offshoot of a series of litigation, arising out of a dakhaldahani or delivery of possession given to the auction-purchaser Rai Bahadur Baldeo Das Birla in respect of a tenure belonging to the judgment-debtor, Thakur Madan Mohan Nath Sahi Deo. The delivery of possession was effected on various dates on the several properties comprised in the writ of the Court, from the 30th March to 14th April, 1919. Ex. A in this case shows that the possession was delivered in respect of village Kiso on the 23rd of April 1919. Nilmoni Nath Sahi Deo was an under-tenure-bolder under the judgment-debtor and by the operation of law his under-tenure was rendered void by the auction sale under S. 208 of the Chota Nagpur Tenancy Act read with S. 16 of the Bengal Rent Recovery Act (Act VIII of 1865). Nilmoni Nath Sahi Deo resisted the claim of the auction purchaser to obtain possession of the under-tenure, but was defeated in a proceeding under S. 145 of the Code of Criminal Procedure by the order of the Magistrate, dated 1-9-1919, passed in favour of the auction purchaser, which was upheld by this Court on 13-10-1919. Apparently when the proceeding under S. 145 was going on, on 12-9-1919, the complainant in this case Shaikh Karim Bux filed a petition before the Magistrate, complaining against the petitioners, who are the servants of the auction purchaser, of having cut and removed paddy crops from a Plot No. 371 of the Cadastral Survey on the allegation, that the said paddy was grown by the complainant on the strength of the possession derived from a settlement alleged to have been made with him by Nilmoni Nath Sahi Deo on the 13th of March Sambat 1970, corresponding to the 24th of January 1914, by a Hukumnama. The police were ordered to investigate into the matter, but they returned the petition with a report that they were unable to come to any decision as to the respective claims of the parties. This report is dated 14-10-1919. On the 27th of October the Magistrate summoned the accused under S. 379 of Indian Penal Code. The plea of accused as recorded by the Magistrate was that

"They removed the paddy as they had sown it and had ploughed the field this year."

The Magistrate tried the case summarily, and after, examining five witnesses on behalf of the prosecution and four witnesses on behalf of the defence, recorded a judgment of conviction and sentenced the accused to six weeks'' rigorous imprisonment.

The petitioner moved the Judicial Commissioner of Ranchi who by his order of the 7th of January 1920, declined to recommend the case of this Court for interference with the order of the Magistrate.

From the nature of the dispute and particularly from the plea taken by the accused, it was obvious that the case involved a complicated question of right and title and that it was not possible in a summary procedure to come to a definite and correct decision upon these points. This is also obvious from the long Judgment of the Magistrate who appears to have taken great pains in order to solve intricate questions involved before him. In spite of all this, the Magistrate chose to adopt the summary procedure for the trial of the petitioners.

The learned judicial Commissioner seems to have realised the unreasonableness of the procedure adopted by the Magistrate, for, he says, that he agrees with the argument on this point urged on behalf of the Petitioners before him, but he declined to take any action inasmuch as in his view the wrong exercise of the discretion was not in itself a sufficient ground for an interference with the decision of the Magistrate. Whether the Judicial Commissioner is right or not in the abstract principle of law laid down by him, in the circumstances of this case it is obvious that the accused have been prejudiced by this wrong exercise of the discretion by the Magistrate and that itself is a good ground for an interference with the discretion exercised by the Magistrate to try the case summarily, and for setting aside the conviction and ordering a retrial. Another reason why the conviction cannot be supported is the illegal and irregular acceptance of the most important document in the case, the title deed of the complainant, the Hukumnama referred to above. This Hukumnama is an unregistered document with a stamp of one anna affixed thereon. It purports to create a lease without fixed terms and is therefore of a nature of a perpetual lease with the fixity of rent of Rs. 2-8 besides cesses. Such a document comes well within Cl. (d) of sec. 17 of the Indian Registration Act under which it is compulsorily registerable. The document was, therefore, inadmissible in evidence under Sec. 49 (c) of the Act. The whole decision as to the right of the complainant in the land in question has been decided on the basis of this Hukumnama which was improperly admitted in the evidence. The conviction on this ground also is liable to be set aside.

It may, however, be said that there was oral evidence in the case on behalf of the prosecution to show that the settlement was made and that the complainant was in possession of the land for the last six or seven years before the date of the occurrence and that even if the Hukumnama be taken out of consideration the finding of the Court below can be supported upon the oral evidence. In this state of the circumstances there can be no legitimate complaint that this Court should not go into the evidence in this case in revision. But before doing so and finding out how far the finding of the Magistrate can be supported upon the oral evidence in the case, it is impossible for this Court to find out how far the Magistrate was not influenced in his estimate of the oral evidence on account of the document which was improperly accepted in evidence. From the tenor of the Judgment of the Courts below I am inclined to think that their estimate of the oral evidence is to a great extent influenced by the said document. Coming to the evidence, it is impossible to place any reliance upon the testimony of the witnesses judging it externally or internally. From the evidence it is clear that there was a proceeding under Sec. 147 started by the Magistrate at the instance of the manager of the auction purchaser. Witnesses Nos. 1, 2 and 5 were accused in that proceeding, whereas all the five witnesses have recently taken settlement of the land from Nilmoni Nath Sahi Deo, most probably out of the disputed under-tenures. Their evidence, is ridiculous and to read them is sufficient to discard them. The Judicial Commissioner has declined to go into the evidence as he thought that his hands were fettered in revision. As I have observed above, this is a case in which this Court is justified in looking into the evidence, particularly when the trial has been summary. The Magistrate has given no reason in his judgment as to why the evidence of Mr. A. P. Hanson, Manager of the auction purchaser, should not be accepted. He has in clear terms stated that he took delivery of possession of the lands in question from the Civil Court Nazir and had them sown and cultivated, and that the paddy crops were cut by the accused under his instructions. As to the delivery of possession the Nazir of the Civil Court corroborates Mr. Hanson, though it could not be expected that he would be able to swear to the possession being given of particular plots, when he had been engaged in giving possession from the 30th March to the 14th April 1919 over innumerable properties covered by the writ of the Court.

Compared with the evidence on behalf of the defence, the evidence on behalf of the prosecution appears to me not only unreliable but also vague and insufficient for conviction. The Magistrate as well as the Judicial Commissioner appears to have been greatly influenced by the plea taken by the accused. That plea, as recorded by the Magistrate and as referred to above, appeared to them to be a plea of having actually sown and ploughed the field but from the evidence in the case, particularly of the manager, it appears that the land in question was not actually sown by the accused, but that the crops were cut and removed by them under the order of the manager. As the accused were claiming the possession of the land on behalf of their master, it was consistent with their plea to allege that they had sown and ploughed it, meaning thereby evidently that it was sown and ploughed on behalf of their master. On account of the summary nature of the trial their statement has not been recorded in their own words, and hence they cannot be pinned down to the purports of their statements recorded by the Magistrate. This also shows how the procedure adopted in this case has prejudiced the accused. The learned Judicial Commissioner has declined to give effect to their plea of not having acted mala fide and with dishonest intention in cutting the crop in as much as they were cutting it under the orders of their master simply upon the ground that their plea was that of having actually sown and cultivated the land; but the evidence in this case as already pointed out shows that the plea was misunderstood. There is, therefore, no reason why the principle of law should not be applied to this case, that, even if the fact alleged by the prosecution be accepted, it has not been shown that the accused acted with any dishonest motive in cutting and removing the crop from the land in question under the orders of their master who, they believed, had grown the crop. There was la clear plea of bona fide title raised in the lease which took the case out of the province of the criminal Court and the Magistrate could well have left the parties to have their rights determined by a Civil Court.

The allegations made in the complaint and the note of the Magistrate thereon referring to the Khatian, must also have made it clear to him that the dispute in this case raised a bona fide question of title. This was made clearer still by the report of the police, which stated that in spite of their local investigation, they could not come to any conclusion as to the respective rights and claims of the parties. Nowhere in the evidence in the case it has been asserted that the complainant was a settled raiyat in the village or had acquired a right of occupancy in the lands in suit apart from Hukumnama. It thus becomes a matter of great controversy as to what the rights of the complainant were in the lands even if he be held to have been in possession of them. Prima facie the auction purchaser is entitled to obtain possession of all the lands comprised within the writ of the Court free from any incumbrance created by the judgment-debtor and it is for the persons claiming right to remain on the land in spite of the delivery of possession, to prove conclusively the right set up by them.

The litigation arising out of a Civil Court dakhaldhani has already become most unfortunate, and every attempt should be made by a Criminal Court to maintain the auction purchaser in possession of the property unless a clear right to possession is established in any other person. I purposely refrain from giving any opinion as to the right of the complainant in the land in question and I do not consider it pertinent for a Criminal Court, or this Court sitting in revision, to attempt to decide such a complicated question of title raised in this case. I think the matter should be left to be determined by a Civil Court.

The rule must, therefore, be made absolute and the conviction and the sentences passed upon the Petitioners must be set aside.