il 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 Magistrate Meerut in Cases Nos
389 394 of 1950
B C Misra for the appellants
section N Andley J B Dadachanji and Rameshwar Nath for the respondent
April 24
The Judgment of the Court was delivered by SUBBA RAO J
These six appeals by special leave 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 section 145 Code of Criminal Procedure and attached the disputed lands on October 8 1948 and directed them to be placed in possession of a superdgidar pending disposal of those proceedings
After 800 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 Revenue Court Additional Collector Meerut against the appellants under section 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 40000 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 Ghaziabad to whom 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 kasht 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 Commissioner 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 801 consent of the parties the decision in the suit 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 Jahana 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
We do not therefore propose to express our opinion thereon
101 802 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 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 section 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 shall also presume that any officer by whom any such document purports to be signed or 803 certified held when he signed it the official character which he claims in such paper 
Under this section a Court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document
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 indi cates 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 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 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
804 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 section 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 805 no question on the 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 section 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 cultivation
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 con flicting 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 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
Jurisdiction is expressly conferred on Revenue Courts to entertain among others suits for ejectment 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 section 180 the material part of which reads  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 with the provisions of the law for the time being in force shall be liable to ejectment under 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 II
A tenant entitled to sublet a lot of land in accordance with the provisions of the law for the time being in force may maintain a suit under this section against the person taking or retaining possession of such 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 person 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 section 180 of the Act
Against that 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 section 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 section 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 not support the appellants
The respondent did not admit that possession was taken in execution of the order made by the Magistrate but lie 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
808 Can it be said that the appellants had taken possession in accordance with the provisions of section 145 of the Code of Criminal Procedure  The short answer is that section 145 of the said Code does not confer on a Magistrate any power to make an order directing the delivery of possession to a person who is not
in possession on the date of the preliminary order made by him under section 1451 of the Code
Under section 1451 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 dis pute
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 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 section 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 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 809 lands in accordance with the provisions of any law for the time being in force so as to be outside the scope of section 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 section 145 s 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 section 145 of the Code of 102 810 Criminal Procedure conferred a title or a right to pos session on them
This leads us to the consideration of the legal effect of the order made by the Magistrate under section 145 of the Code of Criminal Procedure
Under section 1456 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 vs Brojo Mohini Chowdhrani 1 tersely states the effect of orders under section 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 section 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 subrule 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 LR 29 IA 24 33
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 the 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 publish As amended on 8 10 1952
ed in Gazette dated 30 6 1952
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 the area for which a notification under section 4 has been issued pending in any court on the date of vesting  shall be stayed 4v
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
All suits and proceedings whether of the 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 4v
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 812 51
Disposal of suits and proceedings stayed under rule 4a1
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
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
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 UP Zamindari Abolition and Land Reforms Act 1950
Disposal of suits and proceedings stayed under rule 4 a1 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
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
813 From a comparative study of the aforesaid rules it will be seen that there are two fundamental differences B relevant to the present enquiry namely i while under the original Rules all suits under section 180 of the Act are stayed under the corresponding rules of the amended Rules an exception is made in the case of lands which are Sir Khudkast or grove of an intermediary in which rights have not accrued to the defendant under section 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 procedure 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 ai 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 section 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 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
In the result the appeals fail and are dismissed with costs
Appeals dismissed


Summary:
The respondent who was a teacher in a railway school was prosecuted under section 161 of the Indian Penal Code and section 52 read with section 51d of the Prevention of Corruption Act 1947
The 1  222
740 prosecution case was that the respondent offered to secure a job for the complainant in the Railway Running Shed at Abu Road if the latteR paid him Rs 100 that the complainant agreed to this and that on October 5 1954 the complainant wrote out an application addressed to the Divisional Mechanical Engineer Abu Road and handed it to the respondent and gave him Rs 50 promising to pay the balance of Rs 50 after the Job had been secured
The Special judge who tried the case accepted the prosecution story and convicted the respondent on both the charges but on appeal the High Court acquitted him on the ground that he was not a public servant
The State appealed to the Supreme Court
It was contended for the respondent that even if he were considered to be a public servant he could not be held guilty on either of the charges framed against him
It was found that neither in the charge framed under section 161 of the Indian Penal Code nor in the evidence was there anything to show that the respondent intended to approach any public servant in order to secure a job for the complainant
Held  1 that the respondent was a public servant within the meaning of the ninth clause of section 2I of the Indian Penal Code as he was in the service of Government was being paid by it and was entrusted with the performance of a public duty inasmuch as he was a teacher in a school maintained by Government and it was part of his public duty to teach boys
G A Monterio vs The State of Ajmer   followed
2 that in view of the words  by otherwise abusing his position  read along with the words  in the discharge of his duty  in section 51d of the Prevention of Corruption Act 1947 an offence under that section requires that the public servant should misconduct himself in the discharge of his duty
In the present case as the respondent was only a teacher it was not part of his duty to make appointments in the Railway Running Shed at Abu Road and consequently when he took money for procuring a job for the complainant he was not committing misconduct in the discharge of his duty
Accordingly a conviction under section 52 read with section 51dof the Prevention of Corruption Act 1947 was not valid
3 that the mere fact that a person takes money in order to get a job for another person somewhere would not by itself be an offence under section 161 of the Indian Penal Code and that as the charge under section 161 did not disclose who was the public servant whom the respondent would have approached for rendering or attempting to render service to the complainant in securing a job for him the prosecution under that section was not maintainable and 4 that the presumption under section 41 of the Prevention of Corruption Act 1947 could not arise in the present case as section 161 of the Indian Penal Code was not applicable