Chander Mahton and Others vs Emperor

Dhavle, J.—This is a petition in revision on behalf of three men who own the twelve annas proprietary interest in mauza Ashopur Nashirpur and were tried along with two men Chattoo and Bhadai on a charge of theft of crops from plot No. 257 of khata. No. 107 and convicted and sentenced to fines of Bs. 10 each. The complainant wasbarahil of the four anna ''landlord. The khata was recorded in the record of rights in the name of one Jago Gope, and it is common ground, that he died many years ago without issue.

The prosecution case was that in 1935 complainant''s malik (a lady) brought a rent suit against Chattoo and Bhadai, making the remaining landlords pro forma defendants, that she obtained a rent decree and in execution of that decree purchased the holding, herself and took out dakhal dehani of the land together with the crops standing on it on 25th July 1939. On 12th December 1989, the petitioners and Chattoo and Bhadai took the crop away notwithstanding the protests-of the complainant bafahil. The defence was that the complainant''s malik had no right to settle the land with Chattoo and Bhadai, that on Jago Gope''s death the land'' had come into the possession of the petitioners as maliks, and that by a private arrangement among them plot No. 257 had been left in the exclusive possession of the petitioner Ram Chandra or Chander who had grown the crop. The proceedings of the rent suit and execution were assailed as fraudulent, but no evidence seems to have been given on the point. The lower Courts accepted the prosecution story.

It has been contended on behalf of the petitioners that the conviction is vitiated by the failure of the trial Court to allow the defence to summon and examine a competent clerk of the canal department after the failure of Muhammad Abdur Rauf, D.W. 1, to prove the parchas given by that department. Mr. B.P. Sinha who appears on behalf of the complainant, has, with his usual fairness, conceded that in the facts of this case the accused were entitled to have another clerk of the canal department put into the witness box since it appears that they had originally applied to the Magistrate for calling somebody from the canal department who would be able to prove the khasras and other papers of that department.

The trying Magistrate was obviously in error in saying that the defence application of 25th July was put in too late. They had applied at the proper time for calling a competent clerk, naming one, and leaving it to the department to send any other competent person. The department sent Muhammad Abdur Rauf, and when it appeared during his examination that he was unable to prove the handwriting on the papers, the defence at once applied for another clerk to be summoned. But the petition in revision can be disposed of even without calling any clerk from the canal department because the learned advocate is quite prepared to concede on behalf of the complainant that the papers did stand in the name of the petitioner Nawal Kishore. The concession is all the more readily made because, as the learned advocate pointed out, it really goes far to destroy the defence case. The papers in question relate to the years 1982-83 and 1937-88, and if it was the defence case that in these papers Nawal Kishore''s name was shown and that, therefore, Nawal Kishore was in possession, it is the case of these petitioners themselves that not Nawal Kishore, but Chander has been in possession of the land for the last five or six years.

As a matter of fact, the evidentiary value of papers of this kind is easily exaggerated. I am not aware that the canal department concerns itself with actual possession, and where leases or kabuliyats are executed, the canal department is content to realize its dues from the persons who execute such documents. It has also been suggested by Mr. Sinha that such kabuliyats are not always executed by cultivating tenants, but that they are sometimes executed, especially for long periods, by the landlords who make their own arrangements with the tenants in cultivating possession regarding the realization of the dues in question from the parties on whom the burden is to fall.

The value of these khasras and parchas would, in the circumstances of the present case, be even smaller than usual by reason of the rent suit of 1935 in which the three petitioners were joined as pro forma defendants. The learned advocate for the petitioners has cited Niharbala Debi Vs. Shashadhar Ray Chaudhuri, and contended that that suit and decree, and the execution that followed did not in any sense bind the petitioners but that it is open to them to treat all these proceedings as a nullity. This contention I am entirely unable to accept. It is not supported by the case cited. What was decided in Niharbala Debi Vs. Shashadhar Ray Chaudhuri, was that pro forma defendants are under no obligation to point out to the plaintiff or to the auction purchaser any defects that there may be in the suit or in the execution proceedings to prevent the decree and execution from having the force of a rent execution and that the fact that they were made pro forma defendants does not prevent them in a suit of their own from showing that the previous decree and execution proceedings were not of the special kind provided for in Chap. 14, Tenancy Act. That is by no means the same thing as saying that cosharer landlords who are joined as pro forma defendants in a rent suit are entitled to treat the suit and execution as a nullity. The contention of the petitioners that complainant''s malik had no right to settle the land, on the death of Jago Gope, with Chattoo and Bhadai as she only had a four annas interest in the mauza is also negatived by the rent decree and execution. If the settlement had been made by the four anna landlord and on her own behalf, the landlords who owned the remaining twelve annas could not have been made pro forma defendants at all. The defence that the proceedings were fraudulent was also not supported by any reliable evidence. The finding of the lower Courts that the crop which the petitioners and Chattoo and Bhadai are found to have taken away in spite of the protests of the barahil was grown by Chattoo and Bhadai and was actually standing on the land at the time of the dakhal dehani and passed with the dakhal dehani is only opposed to the evidence of one defence witness whom the trying Magistrate specifically found entirely unworthy of belief.

It is quite clear that in these circumstances there is no reason whatsoever in revision either to hold that the crop was grown by Chander or to accept the learned advocate''s contention that this was a case of a civil dispute.

The third and last point urged by the learned advocate is that the lower Courts have not considered the case of each individual accused properly. The only distinction that has been suggested between one petitioner and another is based on the fact that the petitioner Nawal Kishore was a railway servant and is now a pensioner. But this distinction was specifically adverted to by the trial Court, and the lower appellate Court does seem to have considered the probability of all the five persons who had appealed to that Court having acted together in the removal of the crops.

In my opinion no ground has been made out for interfering in revision in this case.

The application is dismissed.