# SUPitEME COUHT ItEPOHTS [1959] Supp. BHINKA AND OTHEitS v. CHAHAN SINGH

- **Citation:** [1959] Supp. 2 S.C.R. 798
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeals Nos. 78 to 83 of 1959
- **Bench:** S. K. Das, A. K. Sarkar, K. SuBBA HAo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supiteme-couht-itepohts-1959-supp-bhinka-and-otheits-v-chahan-singh-1670
- **Pages:** 17

## Headnote

Agricultural Tenancy-Jurisdiction of Revenue Court-Suit
for eject1ncnt of person in occupation without title-Provisional order
of Magistrate regarding possession, if a proper defence-U. P.
Tenancy Act, I939 (U. P. 17 of Ig39), s. I8o-Code of Criminal
Procedure (V of I898), s. I45·
These appeals arose out of suits for ejectment instituted in
the I<.evenue Court by the respondent Zamindar against the
appellants under s. 180 cif the U. P. Tenancy Act, 1939 (U. P. 17
of 1939).
His case was that the lands in suit were his sir lands
and the appellants trespassed on the same on the basis of a
wrong order of the Criminal Court. The case of the appellants
was that they were admitted as hereditary tenants by the respondents. There was a previous proceeding under s. 145 of the Code
of Criminal Procedure between the parties and the Magistrate
found. possession with the appellants and directed that they
should remain in possession till evicted by due process of law.
The Revenue Court which tried the suits found that the lands
were sir lands of the respondent and the appellants were not
hereditary tenants and did not take possession with the consent
of the respondent. The Additional Commissioner on appeal and
the Boa.rd of Revenue on second appeal, agreed with these findings of the Revenue Court and dismissed the appeals. The
Board negatived the plea of the appellants that the suits were
not triable by the Revenue Court. Section r8o of the U. P.
Tenancy Act, 1939, provides that a person taking or retaining
possession of land without the consent of the person entitled to
admit him into occupation and otherwise than in accordance
with the provisions of law for the time being in force will be
liable to ejectment thereunder. In view of the finding of the courts
below that the appellants had not taken possession with the consent of the respondent, the question was whether they did so by
virtue ol s. r45 of the Code of Criminal Procedure.
Held, that the provisions of s. r45 of the Code of Criminal
Procedure authorised the Magistrate only to declare the actual
possession of a party on a specified date and not to give possession or permit any party to take possession. He had no power
under that section to decide questions of title or right to posses-
-
sion \vhich a civil court a,Ione could decide.
The words " taking " and " retaining " were used by s. 180 of
the Act in an independent and exclusive sense. 'fhe former
referred to taking of possession illegally and the latter to taking
of possession legally but subsequent retaining of it illegally.
Consequently, the appellants whose possession had been found
(2) S.C.R.
SUPREME COURT REPORTS
799
to be illegal from the very inception, could not be said to retain
possession legally so as to be outside the scope of the section.
It was also clear that possession in accordance with law,
such as was contemplated by s. 180 of the Act, meant possession
with lawful title. The provisional Order of the Magistrate with
regard to possession, irrespective of lawful rights of the parties,
could not, therefore, enable the appellants to resist the suit nuder
s. 180 of the Act.
Dinomoni Chowdhrani v. Barojo Mohini Chowdhrani, (1901)
L.R. 29 I.A. 24, referred to.

## Text

Apri! 24
798
SUPitEME COUHT ItEPOHTS [1959] Supp.
BHINKA AND OTHEitS
v.
CHAHAN SINGH
(S. K. DAS, A. K. SARKAR and K. SuBBA HAo, JJ.)
Agricultural Tenancy-Jurisdiction of Revenue Court-Suit
for eject1ncnt of person in occupation without title-Provisional order
of Magistrate regarding possession, if a proper defence-U. P.
Tenancy Act, I939 (U. P. 17 of Ig39), s. I8o-Code of Criminal
Procedure (V of I898), s. I45·
These appeals arose out of suits for ejectment instituted in
the I<.evenue Court by the respondent Zamindar against the
appellants under s. 180 cif the U. P. Tenancy Act, 1939 (U. P. 17
of 1939).
His case was that the lands in suit were his sir lands
and the appellants trespassed on the same on the basis of a
wrong order of the Criminal Court. The case of the appellants
was that they were admitted as hereditary tenants by the respondents. There was a previous proceeding under s. 145 of the Code
of Criminal Procedure between the parties and the Magistrate
found. possession with the appellants and directed that they
should remain in possession till evicted by due process of law.
The Revenue Court which tried the suits found that the lands
were sir lands of the respondent and the appellants were not
hereditary tenants and did not take possession with the consent
of the respondent. The Additional Commissioner on appeal and
the Boa.rd of Revenue on second appeal, agreed with these findings of the Revenue Court and dismissed the appeals. The
Board negatived the plea of the appellants that the suits were
not triable by the Revenue Court. Section r8o of the U. P.
Tenancy Act, 1939, provides that a person taking or retaining
possession of land without the consent of the person entitled to
admit him into occupation and otherwise than in accordance
with the provisions of law for the time being in force will be
liable to ejectment thereunder. In view of the finding of the courts
below that the appellants had not taken possession with the consent of the respondent, the question was whether they did so by
virtue ol s. r45 of the Code of Criminal Procedure.
Held, that the provisions of s. r45 of the Code of Criminal
Procedure authorised the Magistrate only to declare the actual
possession of a party on a specified date and not to give possession or permit any party to take possession. He had no power
under that section to decide questions of title or right to posses-
-
sion \vhich a civil court a,Ione could decide.
The words " taking " and " retaining " were used by s. 180 of
the Act in an independent and exclusive sense. 'fhe former
referred to taking of possession illegally and the latter to taking
of possession legally but subsequent retaining of it illegally.
Consequently, the appellants whose possession had been found
(2) S.C.R.
SUPREME COURT REPORTS
799
to be illegal from the very inception, could not be said to retain
possession legally so as to be outside the scope of the section.
It was also clear that possession in accordance with law,
such as was contemplated by s. 180 of the Act, meant possession
with lawful title. The provisional Order of the Magistrate with
regard to possession, irrespective of lawful rights of the parties,
could not, therefore, enable the appellants to resist the suit nuder
s. 180 of the Act.
Dinomoni Chowdhrani v. Barojo Mohini Chowdhrani, (1901)
L.R. 29 I.A. 24, referred to.
CIVIL
APPELLATE JURISDICTION:
Civil Appeals
Nos. 78 to 83 of 1959.
Appeals by special leave from the judgment and
orders dated July 28, 1954, of the U. P. Board of
Revenue in Second Appeals Nos. 430-435 of 1953-54,
arising out of the judgment and orders dated April 28,
1954, of the Court of the Additional Commissioner,
Meerut Division, Meerut, in Appeals Nos. 455-460 of
1954 against the judgment and orders dated March 16,
1954, of the Addl. District Ma.gistrate, Meerut., in Cases
Nos. 389-394 of 1950.
B. 0. Misra, for the appellants.
S. N. Andley, J. B. Dadachanji and Rameshwar
Nath, for the respondent.
1959.
April 24.
The Judgment of the Court was
delivered by
IfJ59
Bhinka & Others
v.
Charan S-ingh
SuBBA RAO, J.-These six appeals by special leave
S11bba Rao J.
were filed against the judgment of the Board of Revenue dated July 28, 1954.
The respondent was a Zamindar of Gadhi, Baghu
and Santokpore Villages in Uttar Pradesh.
He
claimed that the plaint-schedule lands were his Sir.
The appellants set up a dispute claiming that they
were admitted by the respondent as hereditary tenants
and that they were in possession of the said lands.
As the dispute was likely to cause breach of the peace,
the Sub-Divisional Magistrate, Baghpat, took proceedings under s. 145, Code of Criminal Procedure, and
attached the disputed lands on October 8, 1948, lJ>l1d
directed them to be placed in possession of a superdgidar pending disposal of those proceedings.
After
1959
Bhinka & Others
v.
Charan Singh
Subba Rao ].
800
SUPREME COURT REPORTS [1959) Supp.
making the necessary enquiry, by an order dated
March 20, 1950, he found that the appellants were in
possession of the said lands and declared that they
were entitled to be in possession thereof until evicted
therefrom in due course of law.
On June 30, 1950, the respondent filed six suits in
the Revt>nue Court (Additional Collector, Meerut)
against the appellants under s. 180 of the U. P.
Tenancy Act (U. P. 17 of 1939), hereinafter called the
Act, for evicting them from the said lands and for
damages. He alleged therein that the disputed lands
were his Sir lands and that the appellants trespassed
on the same on the basis of a wrong order of the Criminal Court. The appellants pleaded, inter alia, that
they had been admitted as hereditary tenants by the
respondent after receiving from them 'a sum of
Rs. 40,000 towards premium. The suits were consolidated, but were stayed on August 14, 1951, under r. 4
of the 1-tules made under the U. P. Ordinance No. III
of 1951. On September 22, 1952, on an application
made by the respondent, the Revenue Court ordered
under r. 5 for restarting the trial of the suits.
After
the said order, the Revenue Court trltnsferred the suits
to the Civil Court for retrial, but the first Additional
Munsif, G hazia bad, to w horn the suits were transferred,
held that the said suits were triable only by the Revenue Court and retransferred the same to that Court.
The Additional Collector, Meerut, held, on evidence,
that the said lands were Sir and Khud lcasht of the
respondent and that the appellants were not admitted
thereto as hereditary tenants.
The appellants preferred six appeals against the decrees of the Additional Collector in the six suits to the Court of the Commissiouer at Meerut. The Additional Commissioner,
who heard the appeals, held that one of the appeals
filed by the legal representatives of Jahana, the plaintiff in the suit which gave rise to that appeal, had not
been properly presented on the ground that Shri
Brahmanand Sharma, Vakil, did not file in the suit
any vakalat given to him by the legal representatives
of the deceased and therefore the appeal had abated,
and that as all the suits were consolidated with the
'
(2) S.C.R. SUPREME COURT REPORTS
801
consent of the parties, the decision in the Ruit became
final and operated as res judicata in the other appeals.
On the merits, he agreed with the trial Court in holding that the lands in dispute were Sir and that
the appellants were not hereditary tenants. Thereafter, the appellants preferred six second appeals
against the said order of the Additional Commissioner
to the Board of Revenue at Allahabad. The Board
of Revenue accepted the findings of the two Courts, ·
and also it negatived the plea raised by the appellants
for the first time to the effect that the suits were not
maintainable in the Revenue Court. In the result,
the appeals were dismissed. The present appeals were
filed against the order of the Board of Revenue.
The learned Counsel for the appellants raised before
us the following contentions: (1) The appeal by the
legal representatives of J ahana against the order of
the Additional Collector, Meerut, was properly presented to the Court of the Commissioner ; (2) assuming
that the said appeal had abated, the decision of the
Additional Collector in the suit giving rise to the said
appeal would not operate as res judicata in the
connected appeals; (3) the Revenue Court had no
jurisdiction to try the suits; (4) as the suits had been
stayed under r. 4 of the Rules made under the U. P.
Zamindari Abolition and Land Reforms Act, 1950,
hereinafter called the Rules, they had abated under
r. 5 of the said Rules; (5) the finding on issue one,
namely, that the appellants were not hereditary
tenants, was vitiated by errors of law; and (6) the
finding on issue two', namely, "to what damages, if
any, was the plaintiff entitled", was contrary to law
inasmuch as the Additional Collector gave damages
though neither the witnesses deposed to it nor the
Advocate advanced any argument thereon.
The first two contentions need not detain us. As we
are rejecting the contentions of the learned Counsel
for the appellants on all the other points, the correctness of the decision of the Revenue Board on the said
two points would not affect the result of the appeals.
vVe do not, therefore, propose to express our opinion
• thereon.
IOI
. I959
Bhinha &. Others
v.
Charan Singh
Siebba Rao j.
802
St.J:PREME COURT REPORTS [1959] Supp.
'959
w· e shall take the fifth contention next. That conBh' k--;;;:- 0 h
tention raises the question whether the appellants
in av.
1 ers were hereditary tenants of the disputed lands. The
Cha•an Singh
three Courts have concurrently held on a consideration of oral and documentary evidence that they were
Subba Rao J. not hereditary tenants. The learned Counsel for the
appellants made an attempt to reopen the said finding
by contending that it was vitiated by the following
errors of law: (i) Though the appellants filed a certified copy of the.khatauni of 1355 fasli, the- Courts did
not draw the presumption, which they were bound to
do, to the effect that the said certified copy was a
genuine document and that the person who purported
to have signed it had held the official character which
he claimed to hold in the said document ; (ii) as the
Magistrate made an order in favour of the appellants
under s. 145 of the 'Code of Criminal Procedure, the
Courts should have thrown the burden of proof on the
respondent; (iii) the material evidence adduced on the
side of the appellants was ignored; (iv) the Courts
applied different standards of proof to the appellants
and the respondent in regard to the certified copies of
khatauni and khasra prepared by the same patwari,
Ahmed Ali; and (v) the Courts also ignored the rights
accrued to the appellants and ss. 10, 16 and 20 of the
U. P. Tenancy Act. For convenience of reference and
to distinguish the alleged errors of law from the main
contentions, we shall refer to the former as points.
The first point, in the manner presented before us,
does not appear to have been raised in any of the
three Courts. Section 79 of the Evidence Act reads :
" The Court shall presume to be genuine every
document purporting to be a certificate, ......... which
is by law declared to be admissible as evidence of any
particular fact, and which purports to be duly certified by any officer of the Central Government or of a
State Government,. ............................................. .
Provided that such document is substantially in
the form and purports to be executed in the manner
directed by law in that behalf.
The Court sha11 also presume that any officer by
whom any such document purports to be signed or•
(2) S.C.R. SUPREME COURT REPORTS
803
certified, held, when he signed it, the official character
z959
which he c. laims in such paper".
Eh. k
"'· Oth
U d
h•
•
C
• b
d
d
h
In a '-""
efS
n er t IS section a
ourt IS
oun
to
raw ·t e
v.
presumption that a certified copy of a document is
Charan Singh
genuine and also that the officer signed it in the official
character which he claimed in the said document.
Subba Rao J.
But such a presumption is permissible only if the
certified copy is substantially in the form and purported to be executed in the manner provided by law
in that behalf. Section 4 of the Evidence Act indicates the limits of such a presumption. The relevant
part of that section reads :
" Whenever it is directed by this Act that the
Court shall presume a fact, it shall regard such fact as
proved, unless and until it is disproved".
To put it differently, if a certified copy was executed
substantially in the form and in the manner provided
by law, the Court raises a rebuttable presumption in
regard to its genuineness. The khatauni of 1355 fasli
with which we are concerned, gives the relevant
details and purports to have been signed by Ahmed
Ali, the patwari of the village. It cannot be disputed
that the patwari was an officer appointed by the State
Government and that he was authorized to issue certified copies of the record of rights.
The U. P. Land
Records Manual gives the rules prescribing the form
and the manner in which a certified copy of the
record of rights should be issued. Paragraph 26 of
the Manual confers upon him the power to give to the
applicants certified copies from his record; and under
cl. (d) of the said paragraph he should enter in his
diary a note of such extracts. He should also note
the amount of fee realised by him in the diary as well
as on the extract. In this case neither the diary was
produced to prove that the procedure prescribed was
followed nor the extract to disclose that the officer
made any note of payment. It cannot, therefore, be
said that the certified copy was issued by the patwari
in substantial compliance with the provisions of law
governing such issue. If so, it follows that the Court
is not bound to draw the presumption in regard to its
genuineness.
I959
Bhinka c;.. Others
v.
Charan Singh
Subba llao j.
•
804
SUPREME COURT REPORTS [1959] Supp~
That apart, a Court is bound to draw only a
rebuttable presumption in regard to its genuineness.
In ·this case the three Courts rejected the document
on the ground that it was not genuine on the basis of
not only the internal evidence furnished by the document but also on other evidence. They have given
convincing reasons for doing so, and even if there was
any rebuttable presumption, it was rebutted in the
present case.
Nor is there any merit in the second point either.
The order of the Magistrate under s. 145 of the Code
of Criminal Procedure may, at best, throw the burden
of proof on the plaintiff; but in the present case the
question of burden of proof is not material, for the
findings of the three Courts were arrived at on a
consideration of the entire evidence. Though the
learned Counsel says that material evidence has been
ignored by the Courts, he has not been able to point
out what evidence has been excluded. The Courts
have considered the entire evidence placed before
them and the findings were based on an appreciation
of the said evidence. We are also unable to appreciate
the contention that different standards of proof have
been applied by the Courts in respect of the different
parties. This argument is based upon the fact that
the Additional Commissioner, while rejecting the certified copy of the . khatauni of 1355 fasli filed by the
appellant, relied upon the certified copy of khasra
dated June 28, 1948, filed by the respondent, though
both of them were issued by the same patwari, Ahmed
Ali.
We do not see any incongruity in the action of
the Additional Commissioner.
He rejected the former
as, for other reasons, he held that it was not genuine,
and he relied upon the latter as he accepted its
genuineness. The last of the points has not been made
in any of the Courts below and indeed it does not
arise on the finding that the appellants are not tenants. Sections 10, 16 and 20 of the U. P. Tenancy
Act presuppose that the person claiming rights thereunder is a tenant, and, on the finding that the appellants are not tenants, there is no scope for invoking
the said provisions. Presumably for that very reason,
(2) S.C.R.
SUPREME COURT REPORTS
805
no question on the basis of those sections was raised
I959
in the Courts below. The concurrent finding of the m. k--:- 011
three Courts to the effect that the appellants are not
"" av.
iers
hereditary tenants is essentially one of fact and is not
Charan Singh
vitiated by any error of law.
Following the usual
practice of this Court, we must accept the finding.
Subba Rao J.
The sixth contention, in our view, is not open to the
appellants at this stage. The Additional Collector gave
damages though he noticed the fact that no witness
deposed in regard to damages and though the respondent's Counsel did not argue on that point. Notwithstanding the said fact, he gave damages on the basis
of the annual rent of the holdings. The correctness of
this finding was not canvasse.d either in the first appellate Court or in the second appellate Court; nor does
the statement of case filed in this Court disclose any
grievance on that score. In the circumstances, we do
not feel justified to allow the appellants to raise that
plea in this Court.
We may now advert to the main and substantial
contention of the appellants, namely, that the suits are
not maintainable in a Revenue Court. This question
turns upon the interpretation of s. 180 of the Act.
Before reading the section, it would be convenient and
useful to notice briefly the scheme of the Act relevant
to the question raised. The Act, as the preamble
shows, was passed to consolidate and amend the laws
relating to agricultural tenancies (proprietary cultiva-
. tion). It regulates the relationship between the landlords and the tenants in respect of the agricultural
holdings. It confers exclusive jurisdiction on Revenue Courts in respect of rights inter se between the
landlord and the tenant. It also reconciles the conflicting jurisdictions of Revenue and Civil Courts.
Briefly stated, all disputes between a landlord and his
tenant in respect of tenancy are exclusively made
triable by Revenue Courts and all disputes in respect
of proprietary rights are left to the decision of Civil·
Courts. Incidentally, if a question exclusively falling
within the jurisdiction of a Revenue Court arises in a
suit in a Civil Court, that suit is stayed and the relevant issue is submitted for· decision of the Revenue
806
SUPREME COURT REPORTS [1959] Supp.
1959
B!tinka & Others
Court. So too, if a question of proprietary right arises
in a proceeding before a Revenue Court, that issue is
submitted for the decision of a Civil Court. J urisdiction is expressly conferred on Revenue Courts to
entertain, among others, suits for ejectmeut under certain circumstances on specified grounds. Section 180
of the Act is one of the fasciculus of sections dealing
with ejectment. Sections 155 to 179 provide for suits
for ejectment against tenants on specified grounds.
Then comes s. 180, the material part of which reads:
v.
Charan Singh
Subba Rao ].
"(1). A person taking or retaining possession of
a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise
than in accordance witq the provisions of the law for
the time being in force, shall be liable to ejectment
uuder this section on the suit of the person so entitled,
and also to pay damages which may extend to four
times the annual rental value calculated in accordance
with the sanctioned rates applicable to hereditary
tenants.
Explanation 11.-A tenant entitled to sublet a
plot of land in accordance with the provisions of the
la,w for the time being in force may ma.intain a suit
under this section aga.inst the person taking or retaining possession of ~uch plot otherwise than in the circumstances for which provision is made in section 183.
(2) If no suit is brought under this section, or if a·
decree obtained under this section is not executed, the
person in possession shall become a hereditary tenant
of such plot, or if such person is a co-sharer, he shall
become a khudlcasht-holder, on the expiry of the period
of limitation prescribed for such snit or for the execution of such decree, as the case may be.''
Section 242 says that suits of the nature specified in
· the fourth schedule shall be heard and determined by
Revenue Courts. Schedule 4, Group B, gives succintly
the description of the suits and the periods of limitation and the court-fee payable thereon. Serial No. 8
relates to a snit under s: 180 of the Act. Against that
(2) s.c.R.
SUPR~ME1 COURT RE1l?ORTg
807
serial number, the nature of the suit is described in the
following terms :
" For the ejectment of a person occupying land
without title and for damages."
The period of limitation for instituting such a suit is
also prescribed thereunder.
'
Under s. 180 of the Act, a person entitled to admit
another to a plot of land can file a suit in a Revenue
Court to eject him. The latter can defend the suit only
on two grounds, namely, (1) that he has taken possession or retained possession of the said plot with the
consent of the former; and (2) that he took possession
or retained possession in accordance with the provisions of law for the time being in force. If no suit was
brought against the occupier or if the decree obtained
against him was not executed, he would become a
hereditary tenant after the period of limitation prescribed in the fourth Schedule to the Act. On the findings of the Courts below, the appellants did not take
possession of the lands with the consent_ of the respondent; but it is said that they had taken possession
of the lands in accordance with the provisions of the
law for the time being in force.
To substantiate this
contention, reliance is placed firstly on the recitals in
the plaints, and, secondly, on the provisions of s. 145
of the Code of Criminal Procedure. In the plaints it
was stated that the Criminal Court had declared on
March 20, 1950, the appellants' possession for some
reason, and after the order of the said Court, they had
forcibly reaped the crops raised by the respondent.
The cause of action was alleged to have accrued after
March 20, 1950, or near about the date of their taking
possession of the said lands. The allegations in the
plaints do riot support the appellants. The respondent did not admit that possession was taken in execution of the order made by the Magistrate; but he
averred that taking advantage of a wrong order
declaring the appellants' possession, they trespassed
upon his lands. If the allegations were assumed to be
correct, the appellants did not take possession in
accordance with the provisions of the law for the time
being in force.
I959
Bhinka 0- Others
v.
Charan Singh
S"bba Rao ].
I959
Bhinka 6- Others
v.
Charan Singh
Subba Rao ].
808
SUPREME COURT REPORTS [1959] Supp.
Can it be said that the appellants had taken possession in accordauce with the provisions of s. 145 of the
Code of Criminal Procedure? The short answer is
that s. 145 of the said Code does not confer on a
Magistrate any power to make an order directing the
delivel'y of possession to a person who is not in possession on the date of the preliminary order made by him
under s. 145(1) of the Code.
Under s. 145(1) of the
Code, his jurisdiction is confined only to decide whether any and which of the parties was on the date of
the preliminary order in possession of the land in dispute. The order only declares the actual possession of
a party on a specified date and does not purport to
give possession or authorise any party to take possession. Even in the case of :any party who has been
forcibly and wrongfully dispossessed within two months
next before the date of the preliminary order, the
Magistrate is only authorised to treat that party who
is dispossessed as if he had been in possession on such
date. If that be the legal position, the appellants
could not have taken possession of the disputed lands
by virtue of an order made under the provisions of
s. 145 of the Code of Crimil\al Procedure. They were
either in possession or not in possession of the said
lands on the specified date, and, if they were not in
possession on that date, their subsequent .taking possession thereof could not have been under the provisions
of the Code of Criminal Procedure.
If the appellants did not take possession of the dis·
puted lands, did they retain possession of the same in
accordance with the provisions of the law for the time
being in force ? The dichotomy between taking and
retaining indicates that they are mutually exclusive
and apply to two different situations. The word
" taking " applies to a person taking possession of a
land qtherwise than in accordance with the provisions
of the law, while. the word" retaining" to a person
taking possession in accordance with the provisions of
the law but subsequently retaining the same illegally.
So construed, the appellants' possession of the lands
being illegal from the inception, they could not be
described as. persons . retaining possession of the said
(2) S.C.R. SUPREME COURT REPORTS
809
lands in accordance with the provisions of any law for
the time being in force, so as to be outside the scope
of s. 180 of the Act.
But the contention may be negatived on a broader
basis.
Can it be said that the possession by virtue of
an order of a Magistrate under the provisions of s. 145
of the Code of Criminal Procedure is one in accordance
with the provisions of the law for the time being in
force? It appears to us that the words" possession in
accordance with the law for the time being in force"
in the context can only mean possession with title.
The suit contemplated by the section is one by a landlord against a person who has no right to possession.
The preceding sections, as we have already indicated,
provided for evicting different categories of tenants on
specified grounds. Section 180 provides for the eviction of a person who but for the eviction would become
a hereditary tenant by efflux of the prescribed time.
If there is any ambiguity-we find none-it is dispelled
by the heading given to the section and also the description of the nature of the suit given in the Schedule.
The heading reads thus:
" Ejectment of person occupying land without
Title".
"Maxwell On Interpretation of Statutes", 10th Edn.,
gives the scope of the user of such a heading in the
interpretation of a section thus, at p. 50 :
"The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the
plain words of· the statute but they may explain
ambiguous words."
If there is any doubt in the interpretation of the words
in the section, the heading certainly helps us to resolve
that doubt.
Unless the person sought to be evicted
has title or right to possession, it cannot be said that
his possession is in accordance with the provisions of
the law for the time being in force. If so, the appellants must establish that the order of the Magistrate
issued under the provisions of s. 145 of the Code of
102
I959
Bhinka & Others
v.
Charan Singh
Subba Rao ].
I959
Bhinka & Others
v.
Charan Singh
Subba Rao ].
810
SUPREME COUR'r REPORTS [1959] Supp.
Criminal Prooedure conferred a title or a right to possession on them.
This leads us to the consideration of the legal effect
of the order made by the Magistrate under s. 145 of
t.he Code of Criminal Procedure. Under s. 145(6) of
the Code, a Magistrate is authorized to issue an order
declaring a party to .be entitled to possession of a land
until evicted therefrom in due course of law. The
Magistrate does not purport to decide a party's title or
right to possession of the land but expressly reserves
that question to be decided in due course of law. The
foundation of his jurisdiction is on apprehension of the
breach of the peace, and, with that object, he makes a
temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in
the manner provided by law. The life of the said order
is co-terminous with the passing of a decree by a Civil
Court and the moment a Civil Court makes an order of
eviction, it displaces the order of the Criminal Court.
The Privy Council in Dinomoni Ghowdhrani v. Brojo
Jfohini Ghowdhrani (1) tersely states the effect of orders
under s. 145 of the Code of Criminal Procedure thus:
"These orders are merely police orders made to
prevent breaches of the peace. They decide no question of title .... ; ....... ".
We, therefore, hold that a provisional order of a Magistrate in regard to possession irrespective of the rights
of the parties cannot enable a person to resist the suit
under s. 180 of the Act.
This leaves us with the fourth contention based
upon the U. P. Zamindari Abolition and Land
Reforms Rules.
To appreciate this contention some
relevant facts may be recapitulated. On August 14,
1951, the six suits were stayed in view of the U. P.
Government Notification dated August 9, 1951, issued
under Ordinance No. III of 1951. Thereafter the suits
continued to remain stayed under r. 4 of the said
Rules. The appellants filed an application under sub.
rule (3) of r. 5 for restarting the trial of the suits, and
an order directing; the restarting of the suits was made
by the Additional Collector, Meerut, on September 22,
(1) (1901) L.R. 29 I.A. 24, 33.
(2) S.C.R. SUPREME COURT REPORTS
811
1952. The appellants preferred a revision against that
order to the Board of Revenue. It was contended
before the Board of Revenue that the suits had abated
under cl. (v) of r. 4 of the Rules, but the Board of
Revenue rejected their contention on the ground that
the suits fell within the exception to r. 5. It may also
be mentioned that the rules were amended on October
8, 1952, i. e., after the order directing the restarting of
the proceedings. On the said facts, the first question is
whether r. 5 of the amended Rules would apply to a
case which was restarted under the provisions of tho
original Rules. The following are the relevant rules
from the two sets of Rules, i. e., the original Rules and
the amended Rules:
Original Rules as published in Gazette dated
30-6-1952.
4.
Stay of certain suits
and
proceedings.-
All
suits and proceedings whether of the first instance,
appeal or revision of the
nature
as
hereinafter
specified in respect of tlrn
area for which a notification under section 4 has
been issued pending in
any court on the date of
vesting, ... shall be stayed:
4(v). Suits, applications
and proceedings including
appeals, references and
revisions
under section
180 of the U. P. Tenancy
Act, 1939.
As amended on 8-10-1952.
4.
All suits and proceedings whether of tho
first instance, appeal or
revision of the nature as
hereinafter specified
in
respect of the area for
which a notification under
section 4 has been issued
pending in any court for _
hearing on the date of
vesting, ....................... .
shall be stayed:
4(v). Suits, applications
and proceedings including
appeals, references and
revisions under section 180
of the U. P. Tenancy Act,
1939, or of similar nature
pending in a civil court,
except where the plaintiff
is a tenant or where the
land was the Sir, khudkhast
or grove of an intermediary and in which rights
I959
Bhinka & Others
v.
Charan Singh
Subba Rao ].
I959
Bhinka & Others
v.
Charan Singh
Subba Rao J.
812
SUPREME COURT REPORTS [1959] -Supp.
5(1 ).
Disposal of suits
and proceedings stayed
under rule 4( a)( 1 ).-Every
suit or proceeding whether
of the
first
instance,
appeal or revision stayed
under clauses (i) to (iv) of
rule 4 shall be abated by
the court or the authority
before which it may be
pending after notice to the
parties and giving them
an
opportunity
to be
heard.
5(2).
The abatement of
any suit or proceeding
under sub-rule
(1) shall
not debar any person from
establishing his right in a
court of competent jurisdiction in accordance with
the law for the time being
in force in respect of any
matter in issue in such suit
or proceeding.
5(3). Where a suit has
been stayed under clause
(v) of rule 4 any party to
the suit may within six
months from the date of
vesting apply to the court
concerned to restart the
issue.
have not accrued to the
defendant under section
16 or any other section of
the U.P. Zamindari Abolition and Land Reforms
Act, 1950.
5(1).
Disposal of suits
and proceedings stayed
under rule 4 (a)(l): Every
suit or proceeding, whether pending in the court
of first instance, or• in
appeal or revision stayed
under clauses (i) to (v) of
rule 4, shall together with
the appeals or revision, if
any, be abated by the court
or the authority before
which it may be pending
after notice to the parties
and giving them an opportunity to be heard.
5(2).
The abatement of
any suit or proceeding
under sub-rule (1) shall
not debar any
person
from establishing his right
in a court of competent
jurisdiction in accordance
with the law for the time
being in force in respect of
any matter in issue in
such suit or proceeding.
(2) S.C.R.
SUPREME COURT REPORTS
813
From a comparative study of the aforesaid rules, it
I959
will be seen that there are two fundamental differences Eh. k--;;;:-- Oth
relevant to the present enquiry, namely, (i) while
in av.
ers
under the original Rules, all suits under s. 180 of the
Charan Singh
Act are stayed, under the corresponding rules of the
amended Rules an exception is made in the case of Subba Rao f.
lands which are Sir, Khudkast or grove of an intermediary in which rights have not accrued to the defendant under s. 16 or any other section of the U. P.
Zamindari Abolition and Land Reforms Act, 1950;
and (ii) while under the original Rules, there is a procedur~ for restarting a suit stayed under r. 4, there is
no such procedure under the amended Rules. In the
present case, the suits were restarted under the old
Rules and thereafter no stay order was made under
the amended Rules. The position, therefore, is that
there was neither a subsisting stay under the old Rules
nor any stay order made under the new Rules. If
so, r. 5 of the amended Rules cannot be invoked, for
under that rule only a suit stayed under r. 4 (a)(i) shall
be abated thereunder. We, therefore, hold that r. 5· of
the amended Rules cannot be invoked in the present
case.
That apart, cl. (v) of sub-rule (2) of r. 4 of the
amended Rules does not in terms apply to a land
which is Sir unless rights have accrued to a person in
possession thereof under s. 16 or any other section of
the U. P. Zamindari Abolition and Land Reforms Act,
1950. On the findings arrived at by the Courts,
namely, that the appellants were trespassers on the
Sir land, it cannot be disputed that they have not
acquired any rights under the aforesaid provisions.
As the operation of r. 5 is conditioned by cl. (v) of
sub-rule (2) of r. 4, there is no scope for invoking the
former provisions unless cl. (v) of sub-rule (2) of r. 4
applies to a given case and also an order of stay has
been made thereunder. In this case, as the suit lands
are found to be Sir lands and as the appellants have
not acquired any of the rights mentioned in cl. (v) of
sub-rule (2) of r. 4, the said sub-rule cannot apply,
and, therefore, r. 5 cannot also be invoked.
Further, this contention was raised in the revision
814
SUPREME COURT REPORTS
[1959] Supp.
I959
Bhin,ka & Others
petitions filed by the appellants to the Revenue Board,
and the latter by its order dated September 6, 1953,
held against them and that order has become final.
For the said reasons, we must hold that the suits could
not be abated under r. 5 of the amended Rules.
v.
Charan Singh
Subba Rao ],
1959
April a7.
In the result, the appeals fail and are dismissed with
costs.
Appeals dismissed .
•
DOLGOBINDA PARICHA
v.
NIMAI CHARAN MISRA & OTHEH,S
(S. K. DAS; A. K. SARKAR and K. SUBBA RAo, JJ.)
Evidence-Admissibility-Joint statement of thr.e personsAdmissibility under s. 32(5) of the Evidence Act, when only one is
dead-Opinion as to relationship-Conduct as evidence of opinionProof of conduct-Direct evidence-" Opinion", meaning of-Indian
Evidence Act, I872 (I of r872), ss. 32(5), 50, 60.
On the death of H, who as the mother of the last male
owner had succeeded to the estate, the respondents claimed the
estate and brought a suit for its recovery on the strength of the
pedigree which they set up that they were the sons of the halfsisters of the last male owner and therefore came before the
agnates. The suit was contested by some of the agnates, of
whom the appellant was one, who challenged the correctness of
the pedigree, and maintained that the respondents' mothers \Vere
not the half-sisters of the last male owner. The trial court
agreed with the respondents' case and decreed the suit and this
was confirmed by the High Court.
The High Court relied on
Ex. I, a petition dated November 2, 1917, which S, one of the
brothers of the third plaintiff, on his own behalf and on behalf
of his brothers had filed in Suit No. 31 of I917 which was a suit
instituted by some of the agnates of H•s husband questioning
the alienation~ made by H. In the petition, S alleged that the
applicants were the legal claimants to the properties in the suit
and prayed' to be added as co-defendants to the suit. The petition contained a pedigree which supported the pedigree set up