State vs Swami Prasad

S.P. Bhargava, J.—The Sub Divisional Magistrate, Chhatarpur, passed an order u/s 145 of the Code of Criminal Procedure directing that the members (Nos. 1 to 11) of party No. 1 were entitled to possession of the lands claimed by them and forbidding disturbance to their possession until evicted there from in due course of law. The members of party No. 2, who are 22 in number, challenged this order before the Sessions Judge, Chhatarpur. The learned Sessions Judge disagreeing with the finding of the learned Magistrate has referred this case with a recommendation that the order passed by the Magistrate be set aside and party No. 2 be restored to possession or possession may not be delivered to either party and the Magistrate be asked to follow the procedure prescribed by Section 145 of the Code of Criminal Procedure.

The main grounds on which the learned Sessions Judge wants, this Court to set as de the order, dated 4-11-1961, are that the admissions of some members of party No. 1 to the effect that they had given up their possession and members of party No. 2 were put in possession have been ignored; that the entries in khasra showing possession of party No 2 have not been given due weight and that the affidavits filed on behalf of party No. 1 could not be relied upon by the Magistrate as they were only cyclostyled copies of one another.

Shri Rajendrasingh who supports the reference at first argued that the learned Sub-Divisional Magistrate had decided the case with undue haste. A transfer application was moved before the Sessions Court u/s 526, Cr.P.C., to have the case transferred from the Court of the Magistrate. That application was rejected by the Sessions Court on 31-10-961. On 3-11-1961, the file reached back the court of the learned Sub-Divisional Magistrate. On that date, an application was submitted to the Magistrate that party No. 2 wanted to move the High Court for transfer and, therefore, further time to be given. That application was again repeated on 4-11-1961 before the said Court but the Court declined to grant time to party No. 2 to move the High Court for transfer of the case and decided the case on that very day, i. e., 4-11-1961, and eleven members of party No. 1 were put in possession on that very day. It does appear that the Sub-Divisional Magistrate would have exercised his discretion soundly if he had shown some patience in deciding the case and not hurried the matters through in the course of a day though u/s 526(8) of the Code, he was not bound to adjourn. But, at this stage, this point has lost all its significance because the case has been decided on merits. I asked the learned Counsel for party No 2 in the course of the arguments as to whether it was his grievance that party No. 2 wanted to put some other evidence on record and the magistrate concerned denied them the opportunity to do so. The learned Counsel very frankly stated that that was not their grievance but he wanted the facts to be gone into in this case due to the bias or prejudice which was shown by the Magistrate. On the conclusion of the arguments, however, an application was submitted on behalf of party No. 2 to say that the case before the magistrate was incomplete and some more evidence remained to be adduced. In the application submitted, party No. 2 has referred to an application, dated 19th September 1961, which was made to the magistrate praying for further time to file the statement but, in my opinion, it is futile to urge this point after it was made clear by the learned Counsel for party No. 2 in this Court that the grievance of party No. 2 was not that an opportunity given to them to adduce evidence. It will further be seen that in the Sessions Court also, this ground was not urged. I, therefore, reject the prayer of party No. 2 to remand the case for filing of necessary documents and statements by the Petitioners to support their case with proper evidence.

On the request of party No. 2, I have examined the entire evidence on record carefully. A perusal of the order of the learned Magistrate shows that he has attached weight to the entry in the Settlement Record. It has not been disputed before me that in the settlement which took place in the year 1939, the land in question was shown to be in possession of the members of party No. 1 in their right of being the sub-tenants. In the Panchsala Khasra, which is on record, for the years 1956-57 and 1957-58, there exist entries showing possession of the members of party No. 1. In the years 1958-59 and 1959-60, these entries have been substituted by other entries showing possession of party No. 2. In the year 1960-61, the lands have been shown as Khali and possession of none of the parties has been entered. The learned Magistrate attached weight to the affidavits which were filed on behalf of party No. 1 and which precisely showed the particular Khasra number in possession of each one of the eleven members of that party who contested the matter. The learned Magistrate came to the conclusion that the affidavits filed on behalf of party No. 2 were vague inasmuch as they merely generally stated the possession jointly of the members of party No. 2 over the fields in dispute and from a long time.

It is true that the learned Magistrate did not attach any significance to the certified copies of the statements of various members of party No. 1 which are said to have been recorded in the year 1958 in the revenue case No. 8 (2-5) of 1958 before the Naib Tahsildar Rajnagar. In these statements, the members deposing stated that they had removed their possession from the survey numbers which were in their possession. But, in my opinion, the learned Magistrate was bound to ignore these statements as the identity of deponents had not been established. It has been held in several cases that the certified copy of a deposition of a witness by itself does not prove the identity of the witness. In any case, it would be necessary to adduce evidence proving the identity of the person who gave the deposition. (See: Rajaballav Ghose v. Akhoy Bagdi, 93 IC 115; Queen Empress v. Durga Sonar, ILR 11 Cal. 580 : Mohammad Ali and Others Vs. Emperor ; Abbasali v. Mohmmad Shah, AIR 1951 MB 92.)

It has further been held in Maqbulan v. Ahmed Hussain, ILR 26 All. 108, that the heading of a deposition was only descriptive of the witness and formed no part of the evidence given by him on solemn affirmation.

In this connection, it has been urged on behalf of party No. 2 that the amendment made in Clause (1) of Section 145 of the Code of Criminal Procedure required the parties to put in such documents in support of their claims along with their written statements as respects the fact of actual possession or the subject of dispute. It was contended that the effect of this amendment was that the documents tendered along with the written statements of the parties were required to be considered without their being proved by any evidence. 1 am unable to agree with this submission. In my view, the amendments introduced in Section 145, of the Code of Criminal Procedure, do not abrogate the law of evidence except in this respect that after the amendment affidavits filed have to be read as evidence. It will be preposterous to think that the documents tendered by a party with his written statements become entitled to be acted upon without being required to be proved in the absence of anything being said in Section 145 of the Code of Criminal Procedure suggesting this conclusion. If the documents are public documents which are not required to be proved further, of course they will be read as evidence but if they happen to be depositions, as is the case before me though they are public documents they must be proved and if they have not been proved, no other conclusion is possible except to ignore them

I may also observe that in the written statement and affidavits filed by party No. 2, there is no reference at all to the admission made by some members of the party No. 1 in the revenue case referred to above. It is idle to think as to what the position might have been if these documents were satisfactorily proved.

It was next contended in support of reference that the entries in the Panchsala Khasra for the year 1958-59 and 1959-60 should have been given weight. It was stressed that u/s 133 of the Vindhya Pradesh Land Revenue and Tenancy Act, 1953, there was a presumption of correctness until the contrary was proved in favour of the annual village papers. No doubt the presumption was there but the affidavits which have been believed by the magistrate contained the recital of this fact that the deponents continued to be in possession and their possession was never lost. It was open for the magistrate to rely upon their affidavits and he has done so. There is another important reason due to which, in my opinion, the conclusion reached by the Magistrate does not appear to be unreasonable. The Vindhya Pradesh Land Revenue and Tenancy Act. 1953, came into force on 1-4-1955. It was provided in Section 89 of the Act that notwithstanding anything contained in any agreement, decision or order of a Court, a sub-lease of any land granted before the commencement of this Act, the terms of the sub-lease shall be deemed to be seven years from the date of the commencement of this Act. Thus, it would be seen that those who were sub-tenants of particular lands from some time prior to 1-4-1956 could not be evicted from their lands till seven years from that date. No reason at all has been assigned as to why the various members of party No. 1 who are said to have made their statements before the Naib-Tahsildar in the year 1958 felt it necessary to lose their valuable rights and part with the possession of their land. The conclusion reached by the Magistrate is consistent with the probabilities of the situation.

The next point emphasized was that the numbers of party No. 1 had failed to place any receipts for the payment of rent on record and on the other hand, rent receipts for the year 1960-61 were brought on record by party No. 2. It was also stressed that the affidavit of Halke Zamindar was put on record by party No. 2 to show that the members of party No. 2 were in possession. It is pertinent to see that the members of party No. 2 have failed to place the receipts on record for the years 1958-59 and 1959-60 when their possession in Khasra papers is recorded. The receipts for the year 1060-61 had no doubt been produced but as already stated in that year there is no entry made in their favour in the Panchsala Khasra. It is obvious that absence of entry would not give rise to any presumption in favour of any of the parties.

Even if it were possible to take a different view of the evidence on the strength of the rent receipt and the affidavit of the Zamindar, this in itself would be no reason to set aside the conclusion reached by the learned Magistrate after taking the affidavits on record in consideration. The affidavits which were filed on behalf of party No. 2 were more general and it has not been specified therein as to which particular pieces of land were in possession of each member of party No. 2. Those affidavits actually give the idea as if there was general or co-operative farming of all the members of party No. 2. It is further significant that in the affidavits filed by the members of party No. 1, they had given the details of the crops sown by them in the fields which were in their possession but such details are completely lacking in the affidavits filed by the other side. The magistrate could reasonably attach importance to that set of affidavits which contained better details.

It was also urged that Sukaiya a member of party No 1, in bis affidavit had clearly admitted the fact that the entire land in question was placed in possession of party No. 2 and this statement should have been acted upon. The impleading of parties in a matter u/s 145 of the Code of Criminal Procedure where the interests of diverse people are involved is to some extent atleast a matter which lies within the volition of the particular officer or person who files the police report or other information on which the preliminary order is based, Shri G.P. Singh contended that actually Sukaiya was not a member of party No. 1 and he was impleaded with the object of making him say something in favour of the second party when he was arrayed as a member of the party No. 1. It is clear from the affidavit of Sukaiya on the face of it that he has not given any details in his affidavit nor does he assign any reason as to why possession of such valuable land was parted with in the year 1958. The affidavit merely contains a bald statement with regard to possession having been delivered. In this view, even if weight was not attached to this affidavit, it cannot be said that the conclusions reached by the magistrate are wholly vitiated. The result of his affidavit has been that to the extent it contained the admission against him with regard to his fields, that land has been allowed to go unquestionably to the possession of party No.

Lastly, it was contended that seven persons who were arrayed as members of party No. 1 did not oppose the fact that the land was in possession of party No. 2 and this in itself went a long way to show that possession never rested with the members of party No. 1. In my opinion, it is not possible to draw this conclusion merely because of the failure of these members to actively oppose the claim asserted by party No. 2 as respects the possession of the lands.

It was vehemently urged that ordinarily the High Court is reluctant to go into questions of fact in a case u/s 145, of the Code of Criminal Procedure but where the Magistrate passed an order without being aware of the full consequences of the provisions contained in Section 145, his order should be interfered with. For this proposition, reliance was sought to be placed on Narbada Prasad v. Beniprasad, ILR 1951 Nag. 21. The principle enunciated in that decision is entitled to respect but as there are materials on record for taking the view that party No. 1 was in possession, the High Court, as a Court of revision, should not interfere with the decision of the trial Court on the fact of possession particularly when the remedy of civil suit is still there to put matters right if there has been some error. In Devaram v. Rampal, 1961 JLJ 148 , it has been held that it is only if the finding of the magistrate as to possession is based on no material at all then the High Court can interfere with his order. In Ram Narayan Goswami and Others Vs. Biswanath Goswami, , this view has been taken that the appreciation of evidence is a question of fact and the High Court will not interfere with a finding of fact in a case u/s 145 of the Code of Criminal Procedure. A Division Bench of the Patna High Court has also taken the same view in the case of Shibnarayan Das and Others Vs. Satyadeo Prasad and Another, . In Phakir Mandal v. Madar Mandal, ILR 58 Cal. 1081. Rankin C.J. & Graham J. held:

In the case of orders u/s 145 of the Code of Criminal Procedure, which are mere police orders to be made by magistrates to quiet disputes, even if it should appear from the judgment of the magistrate that there is an error of law, references should not be made unless it appears that the error of law is of such a character as to call for interference by a higher authority.

Reliance was placed on J.W. Broucke and Others Vs. Kamleshwari Narain Singh and Others, , where it has been held that when it was found that one party was in possession of the land in dispute in the middle of 1947, the onus is on the other party to show conclusively that they had succeeded in dispossessing them within more than 2 months prior to the institution of the proceeding. There can be no quarrel with the principle laid down by the learned Judge but the real difficulty in the instant case is that there is no direct evidence of possession for the years 1958-59 and 1959 60 and the entries made in the Khasra are contradicted by the affidavits of the first party who have asserted that they were all along in possession of the land ever since the time of prior settlement.

The order of the learned Sessions Judge clearly reveals that he tried to sit in judgment over the order passed by the Magistrate more or less like an appellate Court. In para 9 the question he has posed for himself is to find out whether it was party No. 1 that was in possession of 36 fields in question or it was party No. 2 on 4-8-1961. This was hardly within the scope of his functions as a revisional authority. In para 11, the learned Judge committed an error in stating the facts. He has stated, that the revenue records from the years 1956-57 right up to 1960-61 show the possession of members of party No. 2 which is admittedly not the case. The possession of party No. 2, as already stated, was recorded for the two years 1958-59 and 19-9-60 in the revenue papers. The learned Sessions Judge appears to be very much influenced by the observations of my learned brother Golvalkar J. in criminal revision No. 61 of 1961 (Prahlad v. State) in which affidavits which were reproduction of each other were not acted upon. The observations in that case in my opinion, essentially related to the facts of that case. This can have no application and at any rate could not have great weight in this case where the facts asserted were simply facts of possession over a particular piece of land and the affidavits for supporting that fact are required to be prepared for filling in Court by requisitioning the services of a petition writer or leaving that work to be done in the office of a lawyer. In such circumstances, it appears natural that apart from the different length of possession, if any, and the separate number of fields, the other contents of the affidavits may hi common or identical. Merely on that ground, the affidavits cannot be ignored. Even if it were held that the learned Sessions Judge was correct in his comments on this point, he has failed to see that the affidavits of party No. 2 suffer from the same defect even in a more drastic manner. These affidavits without specifying the separate fields and without mentioning the crops contain a common statement to the effect that all the members of party No 2 are in possession of these fields for a long time without defining what the length of that period was. Appreciation of the affidavits filed by the rival parties could only be correctly made by applying a uniform standard to them, which has unfortunately not been done.

On the whole, I am satisfied that the reference made by the learned Sessions Judge cannot be accepted and must be and is hereby rejected.