Case Note & Summary
The appeals arose out of six suits for ejectment instituted by the respondent zamindar against the appellants under Section 180 of the U.P. Tenancy Act, 1939 in the Revenue Court. The respondent claimed that the plaint schedule lands were his sir lands and that the appellants trespassed on them on the basis of a wrong order of the Criminal Court. The appellants contended that they were admitted as hereditary tenants by the respondent after paying a premium of Rs. 40,000. Earlier, due to likelihood of breach of peace, the Sub-Divisional Magistrate had initiated proceedings under Section 145 CrPC, attached the lands on October 8, 1948, and placed them in possession of a superdgidar. By order dated March 20, 1950, the Magistrate found the appellants in possession and declared them entitled to remain in possession until evicted in due course of law. On June 30, 1950, the respondent filed six suits in the Revenue Court for eviction and damages, alleging trespass. The suits were consolidated and initially stayed under Rule 4 of the Rules made under the U.P. Zamindari Abolition and Land Reforms Act, 1950, but later restarted under Rule 5. The Revenue Court, after transfer to the Civil Court and retransfer, found that the lands were sir and khud kasht of the respondent and that the appellants were not admitted as hereditary tenants. The Additional Commissioner dismissed the appeals, holding one appeal had abated and the decision operated as res judicata, while also agreeing on merits. The Board of Revenue dismissed the second appeals and rejected the plea that the suits were not maintainable in Revenue Court. The Supreme Court considered six contentions raised by the appellants, including whether the appeal by legal representatives was properly presented, whether res judicata applied, whether the Revenue Court had jurisdiction, whether the suits had abated, and whether findings on hereditary tenancy and damages were vitiated. The Court declined to express opinion on the first two contentions as the result would not be affected. The Court held that under Section 145 CrPC, a Magistrate is authorised only to declare actual possession on a specified date to prevent breach of peace and has no power to decide questions of title or right to possession. The order does not confer lawful possession. Section 180 of the U.P. Tenancy Act treats 'taking' and 'retaining' possession independently; illegal initial possession cannot be converted into lawful retention by virtue of a Magistrate's provisional order. Possession in accordance with law means possession with lawful title. The Court also held that the presumption of genuineness of a certified copy under Section 79 of the Evidence Act is conditional on substantial compliance with prescribed form and manner; in this case, absence of diary entries and fee notation meant the presumption did not arise. The Court rejected contentions regarding abatement and concurrent findings of fact, affirming that the appellants were not hereditary tenants and that damages were properly awarded. Consequently, the appeals were dismissed.
Headnote
A) Criminal Procedure - Preventive Order under Section 145 CrPC - Magistrate's Limited Power - Code of Criminal Procedure, 1898, Section 145 - A Magistrate acting under Section 145 CrPC is authorised only to declare actual possession of a party on a specified date to prevent breach of peace; the order does not confer title or right to possession. Possession obtained or continued under such order cannot be treated as lawful possession for resisting a suit under Section 180 U.P. Tenancy Act, 1939. Held that the provisional order of the Magistrate could not enable the appellants to resist ejectment. B) Agricultural Tenancy - Ejectment of Person in Occupation Without Title - Scope of Section 180 U.P. Tenancy Act, 1939 - U.P. Tenancy Act, 1939, Section 180 - Section 180 uses 'taking' and 'retaining' in independent and exclusive senses; 'taking' refers to illegal initial possession, while 'retaining' refers to legally obtained possession later held illegally. Since the appellants' possession was found illegal from inception, they could not be said to retain possession legally; 'possession in accordance with law' means possession with lawful title. Held that Revenue Court had jurisdiction and suits were maintainable. C) Evidence - Presumption as to Certified Copies - Genuineness of Public Documents - Indian Evidence Act, 1872, Sections 4 and 79 - A court is bound to presume genuineness of a certified copy only if it is substantially in proper form and issued in accordance with law; evidence of compliance with procedural requirements such as entries in diary and fee notation is necessary. In absence of such proof, presumption is not mandatory. Held that no error in not drawing presumption for khatauni copy. D) Civil Procedure - Abatement and Stay - Effect of Rules 4 and 5 - U.P. Zamindari Abolition and Land Reforms Act, 1950, Rules 4 and 5 - Appellants contended suits abated after stay under Rule 4 and restart under Rule 5; however, since Revenue Court had jurisdiction and trial validly restarted, abatement contention rejected. Held that suits were rightly proceeded with. E) Civil Procedure - Concurrent Findings of Fact - Scope of Interference - No specific statute - The lower courts concurrently found that lands were sir and appellants were not hereditary tenants; such findings based on evidence should not be reopened unless vitiated by errors of law. Alleged errors regarding burden of proof, standard of proof, and ignoring evidence were not established. Held that findings affirmed.
Issue of Consideration
Whether Revenue Court had jurisdiction to try suits under Section 180 U.P. Tenancy Act, 1939; whether proceedings abated under Rules 4 and 5 of U.P. Zamindari Abolition and Land Reforms Rules; whether findings of hereditary tenancy vitiated by errors of law; whether damages awarded without evidence were contrary to law
Final Decision
The Supreme Court dismissed the appeals, upholding the decisions of the lower courts. It held that the Revenue Court had jurisdiction under Section 180 of the U.P. Tenancy Act, 1939, and that the provisional order of the Magistrate under Section 145 CrPC did not confer lawful possession or provide a defence. The findings that appellants were not hereditary tenants and that damages were rightly awarded were affirmed. Contentions regarding abatement and errors of law were rejected.
Law Points
- Legal points not extracted
- Section 145 CrPC order declares actual possession only
- does not decide title
- possession under such order not lawful possession under Section 180 U.P. Tenancy Act
- 'taking' and 'retaining' possession are independent concepts
- possession in accordance with law means possession with lawful title
- presumption under Section 79 Evidence Act conditional on substantial compliance with form and procedure
