Siram Mahto and Others vs Emperor

Reuben, J.—The petitioners have been convicted under Sections 147 and 379, Penal Code, and sentenced under the latter section to a fine of Rs. 25 each and, in default of payment of fine, rigorous imprisonment for ten days. No separate sentence has been imposed u/s 147.

The prosecution case, which has been accepted by the Courts below, is that on 13-9-1945 at village Bhagwatpur in the jurisdiction, of police station Samastipur the petitioners accompanied by ten or fifteen other persons cut and dishonestly removed from plot No. 3685 makai crop grown on behalf of Makardhwaj Narain Singh and his cosharers, and that on protest by the complainant (P.W. 1), the petitioners threat, ened to beat p.w. 1 and ran to do so. The defence, was a denial of the occurrence and an assertion that the land in question is in the cultivating possession of petitioners Siram Mahto and Keshwar Mahto.

Plot No. 8685 was formerly included in Tauzi No. 3871 and in the khatian (Ex. 1) prepared in the year 1898 it is recorded as the bakaaht land of one Thuksharan Lal with a note that it is in the possession of Shyam Bihari Lall as a usufructuary mortgagee Following this entry, there was a Collectorate partition of the estate, and in the partition proceedings plot No. 3885 was allotted to one of the new tauzis formed in the partition and numbered Tauzi No. 1448. This tauzi fell in the share of one Parmanand Lall, whose successors-in-intereat are Ramnarain (D. W. 1) to the extent of 8 annas and his cousin Chariter to the extent of the remaining 8 annas Thuksaran Lall aforesaid got a separate patti. In the barwarda (Ex. E) prepared in the partition proceedings, Plot No. 8685 is recorded as bakashl; without any note of the possession of the mortgagee The complainant''s masters, Makardhwaj and his cosharers, claim possession of''Plot No. 3885 as successors-in-interest of the Original mortgagee Shyam Behari Lall, their case being that the mortgage is still unredeemed. Siram Mahto and Keshwar Mahto claim possession of the land under an oral thika from Bam Harain (D. W. 1) of Ram Narain''s 8 annas share, and a kebala (Ex. D) and a bharna deed (Ex. c) both executed in November 1948 by Awadeah, suceea sof-in-interest of Charitar, and covering the 8 annas sliare of Chariter. The Courts below found possession in favour of the prosecution relying on the khatian of 1898 and the oral evidence of possession adduced by the prosecution.

The first point urged before me is that the Courts below have not given proper weight to the entry in the barwarda (Ex. E), according to which the plot in question is the bakasht of the landlords and which does not show the possession of the mortgagee In this connexion my attention has been drawn to the case in Debi Lal Sah v. Ram Bibeki Singh 63 I.C. 194 as an authority that a presumption attaches to the record prepared in a Collectorate partition proceedings. That was a case in which the record was prepared in accordance with an application filed by the proprietors, who were parties to the proceeding, admitting a certain mokarrari grant. As was pointed out in the later case in Lachhandhari and Another Vs. Rajpat Mahaton and Others, that was a special case in which the admission made by the proprietors gave weight to the record prepared but ordinarily no presumption of correctness attaches to this record such as attaches to a record-of-rights prepared under the provisions of the Bihar Tenancy Act. In this connexion a reference may also be made to the case in Jagdeo Narain Singh v. Bulaki Gope AIR 1921 Pat. 275.

Undoubtedly, the entry in the barwards is admissible as a piece of evidence It has to be considered, however, along with the other evidence, which in this case consisted of the khatian of 1898, and the oral evidence adduced on both side The provisions regarding the preparation of the record of existing rights and assets in Collectorate partition proceedings are contained in chap. 6, Estates Partition Act (Bengal Act 5 [v] of 1897).

The Deputy Collector making the partition may make an independent survey and prepare the record-of-rights and assets under Sections 45 to 48 of the Act, which involves, among other things, a general notification after the preliminary preparation of the record, and attestation of the record in the presence of the persons interested and attending, a correction of the record upon objections made by persons interested after such local enquiry as may be thought fit, a check of the correctness of the measurement if its correctness is challenged, and. finally publication of the record as eventually prepared and a grant of copies to landlords and tenants. Otherwise, u/s 49 of the Act, the Deputy Collector may accept the papers of a previous survey of record-of-rights, etc. "niter making any correction which may appear necessary." There is nothing on the record of the present case to show under which of these differing provisions the barwarda in question was prepared and hence it is not clear what weight would attach to the record so prepared.

What the petitioners particularly rely on in the barwarda is the fact that it does not show the land as being in the possession of the mortgagee The suggestion appears to have been made before the Courts below that this shows that the mortgage was redeemed. As has been pointed out, however, by the original Court, no evidence to this effect was adduced on behalf of the defence while, on the contrary, the case of the prosecution definitely is that the mortgage was not redeemed. Treating the entry in the barwarda merely as a piece of evidence, I find it impossible to hold that the Courts below erred in holding that the entry in the khatian together with the oral evidence of the prosecution witnesses must prevail over the entry in the barwarda.

Next, it is contended that under the provisions of Section 99, Estates Partition Act, the mortgage charge must be held to have been transferred to the share allotted to the mortgagor Thuksaran. This section merely lays down what the rights of encumbrancers will be It would not operate'' automatically to dispossess the encumbrancer if, the encumbrancer does not voluntarily give up his possession. In a case u/s 379, Perial Code, we are concerned primarily with possession and the Courts have rightly considered this point. They have found that in fact Makardh was and his cosharers are in possession. The question, therefore, as to whether the right of Makardh was and his cosharers to possession was affected by the partition proceedings of 1902 is irrelevant in the present case.

Thirdly, it is urged that the Courts below have erred in treating Mabardhwaj as a tenant. The reference is to the appellate Court''s judgment in which the appellate Court speaks of the complainant''s master as being the "recorded tenant. It is obvious that the word "tenant" has been loosely and incorrectly used. The Court was dealing at this part of the judgment with the question as to whether the khatian, should prevail over the batwara record or not, and the question about the exact status of the predecessors-in-interest of Makardhwaj and his cosharers was of no importance The mistake, therefore, has not affected the correctness of the finding.

Next it has been urged that there is 110 finding as to who grew the crop. A perusal of the record shows that all the prosecution witnesses on the point of possession speak of the'' crop in question having been grown by the complainant on behalf of Makardhwaj. The evidence of these witnesses has been accepted by the Courts below without any reservation. We may, therefore, take it that the statements about who grew the crop have also been accepted by them.

It has been "tirged" that the accused were not given an opportunity to produce a certain register to show that tobacco was grown on the land by them. The application for calling for this register was filed on 28-1-1946 and was dealt with on 80-1-1946 as follows:

Defence file a petition to call for certain papers from Excise (Central) Office It is too late Defence got ample opportunity to call their witnesses and documents A rejoinder is also filed by prosecution. The petition is rejected.

The order-sheet of the Magistrate shows that the prosecution closed their case on 22-12-1945 and the case was-adjourned to 25-1-1946 for defence On 25-1-1946 two defence witnesses were examined and cross-examined and the defence filed a petition asking for the summoning of one more witness which was allowed and the case was adjourned to 28-1-1946 for further evidence and argument. Apparently, on further consideration the defence did not want to examine even that witness, because the record shows that this witness was not examined on soth January when the defence closed its case and arguments were heard. The defence having already been given so much time for producing its evidence, I cannot say that the trial Court erred in refusing to call for the register in question.

Next, it is urged that the evidence in this case being of a general nature and the cases of the specific accused persons not having been separately considered, the conviction u/s 379 against the petitioners cannot stand. In support of this contention I am referred to the case in Kailash Singh and Others Vs. Emperor, . There were several accused persons in that case, and the convictions were under Sections 147 and 379. The nature of the evidence in the case does not appear from the report. The defence of two of the accused persons was that they were entitled to cut the crop and had done so a few days before the date of the occurrence as alleged by the prosecution. The other accused persons stated that they had been falsely implicated because they happened to be boundary witnesses. In these circumstances, Varma J. held that the conviction u/s 379 was correct so far as the two accused persons were concerned, but that the other accused persons should get the benefit of the doubt.

In the present case the accused persons themselves have made out no definite case at all. They refused to make any statement u/s 342 and the written statement filed on their behalf merely denies the truth of the prosecution story. There is, however, a distinct statement by one of the defence witnesses that all the accused persons got the maize cut in their presence. The evidence of the prosecution witnesses is general to the effect that the seven accused persons, together with the other ten to fifteen persons who were not before the Court, cut the makai crop. There was no cross-examination as to the details of the occurrence and this general statement does not appear to have been challenged. In these circumstances, there seems to be no reason to interfere with the conviction of the accused persons

Finally, the question of the severity of the sentences has been raised. Considering the circumstances of the case, I do not think that the sentences are unduly severe.

I would, therefore, dismiss this petition.