Tufani Lal and Others vs Mt. Bibi Umatul Rasool

Ross, J.—This is an application against an order passed by the Deputy Magistrate of Patna City in four cases u/s 145 of the Criminal Procedure Code which were tried together. The petitioners are the second party who claim to be tenants of the land in dispute which was purchased by the first party from the late Mr. Justice Sharfuddin by a sale deed in 1917 wherein the lands now in question were described as bakasht lands. The Magistrate has decided all the cases in favour of the first party.

The learned Counsel for the petitioners has taken two main grounds in attacking this order. The first is that the evidence has not been dealt with according to law inasmuch as the oral evidence and many of the documents have not been considered; and the second is that a judgment in a case u/s 107, which was delivered on the 1st of March, 1923, should have concluded the question of the petitioners'' possession so far as the present proceedings are concerned which were instituted on the 15th of March, 1923.

I shall deal first with the second point as it may be briefly disposed of. The decision of the Magistrate (Ex. E) had been relied upon as evidence of possession; but the petitioners came up on appeal before the District Magistrate and in his judgment (Ex. P) he found that the trial court had considered the question of possession and had come to the conclusion against the present Opposite Party on the ground that she had not proved undisputed possession and on the ground that the present petitioners'' the tenants'' claims to the bakosht lands were not mala fide. The learned Magistrate agreed with the trial court that the dispute is one fit to be dealt with only u/s 145. It is clear from this judgment that there is no decision on the question of possession. So far as the present Opposite Party is concerned, all that was found against her was that she had ''not proved undisputed possession; but the final conclusion of the case was that the matter ought to be tried u/s 145 and that is what is being done in the present proceedings. It would, therefore, in my opinion, be unreasonable to hold that the present proceedings, which originated out of that judgment, should be concluded by that judgment itself.

As to the first point, the learned Counsel for the petitioners referred not only to the decision u/s 107 (Ex. E.; but to a later proceeding under the same Section (Ex. G) and to two criminal cases (Exs. D and I) and also to the record-of-rights, and contended that these documents had not been properly dealt with and that the oral evidence of his witnesses had been disposed of only with the remark that "the witnesses of the first party seem to be more reliable than those of the second party." Now with regard to the proceedings u/s 107 generally, it is sufficient to say that they are not primarily concerned with the question of the possession of the lands. The judgments in the two criminal trials are technically not inter parties and in any case are of little evidentiary value. The oral evidence has been considered, not in much detail it is true, but it has been examined. The learned Magistrate has dealt with the evidence of the first party in the light of the documentary evidence filed on her side and has also referred to the fact that boundary tenants had been examined by her. In view apparently of the documentary evidence and of the boundary tenants'' evidence, he comes to the opinion that the oral evidence of the first party generally is more reliable than that of the second party. He refers to the rent receipts produced by the second party and finds that it is unsafe to rely on them; and, with regard to the oral evidence, he considers that the witnesses should not be believed because they are partisan witnesses. There are two documents to which I have not yet referred, namely, the record-of-rights and certain decrees of the Civil Court, and I shall deal with this part of the case later. But with this possible exception it seems to me clear on reading the judgment that the essential elements of the case of each side and of the evidence produced in support of it were clearly before the Magistrate; and he did not, in any material particular, misdirect himself in his judgment. The exception to which I have referred is the treatment of the record-of-rights and the Civil Court decrees. The record-of-rights is in favour of the petitioners and with the presumption of correctness which attaches to it by law it is undoubtedly a most important piece of evidence. Reading the judgment of the Magistrate I was inclined to think that he had treated the entries in the record-of-rights as rebutted by certain decrees of the Civil Court and the delivery of possession that followed them; and, inasmuch as these decrees were subsequent to the entries in the record-of-rights, this would have been a possible view if the decrees existed in every case. The learned Counsel for the petitioners, however, contends that there are decrees in only two of the four cases. This does not seem to be strictly correct. It is true that there is a decree against Ram Narain Singh in the first case and against Sitaram Gope in the second, but the land to which the third case relates is also the subject of the decree against one Subedar Singh; and, so far as the tenant in this case is concerned, Tufani Lal, his name does not appear in the record-of-rights. With regard to the two decrees it is objected that Ram Narain and Sitaram were both minors at the time of the decree and were not properly represented in the litigation, but this is in my opinion a matter with which the Criminal Court is not concerned. The decrees stand and until they are set aside, they must be treated as good decrees. It is also in my opinion immaterial that of the tenants in the first case, Ram Narain Singh and Banwari Singh, only one was made a defendant in the suit. The other objection taken to these decrees was that they were decrees in ejectment suits u/s 66 and that such decrees could not be validly passed against occupancy tenants; but evidently the landlord did not accept the position of the petitioners as occupancy tenants and sued them in ejectment as non-occupancy tenants and obtained decrees. The fact that they are entered in the record-of-rights as occupancy tenants is not a sufficient reason for holding that the decrees in these suits were without jurisdiction or were wrong in law. In fact this question is one which cannot, in a proceeding of the present kind, be dealt with at all. It was, in my opinion, open to the Magistrate to hold that the entries in the record-of-rights were rebutted by these subsequent decrees followed by the delivery of possession by the Civil Court.

There remains the case of Gulam and Juglal in which there is no decree. The record-of-rights shows Gulam as occupancy tenant. The learned Counsel for the Opposite Party referred to the note in the record-of-rights which shows that Gulam held under a kabttliyat, and that kabuliyat (Ex. 125) shows that he held the land for five years only. But this in itself does not show that the entry of the status of Gulam as occupancy tenant was wrong. It may be that he was a settled raiyat of the village and that when he came to the occupation of this land he became the occupancy tenant thereof as the land is not claimed as khudkasht. However that may be, the fact remains that the record-of-rights shows him as occupancy tenant. There is no Civil Court decree in this case and therefore the basis of the reasoning of the learned Magistrate so far as this case is concerned, fails. I therefore allow this application so far as the case of Gulam and Juglal is concerned and set aside the order in their case. In other respects the order of the learned Magistrate is confirmed.