TaxTMI 
TaxTMI 
1959 (4) TMI 32
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....rch 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 Revenue 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 ₹ 40,000 towards premium. The suits were consolidated, but were stayed on August 14, 1951, under r. 4 of the Rules 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 transferred the suits to the Civil Court for retrial, but the first Additional Munsif, Ghaz....
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....e, 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. We do not, therefore, propose to express our opinion thereon. 101 We shall take the fifth contention next. That contention raises the question whether the appellants were hereditary tenants of the disputed lands. The three Courts have concurrently held on a consideration of oral and documentary evidence that they were 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 Court....
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....ess 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 tinder el. (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 sa....
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....he basis of those sections was raised in the Courts below. The concurrent finding of the three Courts to the effect that the appellants are not hereditary tenants is essentially one of fact and is not vitiated by any error of law. Following the usual practice of this Court, we must accept the finding. 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 canvassed 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 secti....
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....n in possession shall become a hereditary tenant of such plot, or if such person is a co-sharer, he shall become a khudkasht-holder, on the expiry of the period of limitation prescribed for such suit 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 suit under s. 180 of the Act. Against that 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....
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.... preliminary order, the Magistrate is only authorised to treat that party who is dispossessed as if lie 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 Criminal 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 disputed 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 otherwise 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 illegal....
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....iminal 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 conterminous 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 Chowdhrani v. Brojo Mohini Chowdhrani (1901) L.R. 29 I.A. 24, 33) 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 regar....
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....nd 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 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 subrule (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 proc....