S.C.R.

SUPREME COURT REPORTS 191

is corroborated by Madan Lal who states that all the 1956 three accused said that the money had been sub- Ram Krishan scribed by them jointly and requested him to accept and another the same and get the case withdrawn. The case of v.

Gian Chand does not stand on any different footing The State of Delhi from that of the other appellants. d fi d d Chandrasekhara The convictions an sentences are con rme an AiyarJ. the appeal will stand rejected.

WASIM KHAN v.

THE STATE OF UTTAR PRADESH.

[B. P. SINHA, JAFER IMAM and CHANDRASEKHARA

AIYAR, JJ.]

Possession, recent and unexplained of stolen goods-Presumptive evidence against prisoner not only of robbery but of murder as well.

The appellant was sentenced to death for the murder of one R e, nd also sentenced to seven years rigorous imprisonment for having robbed the murdered man of his goods. It was established by the evidence on the record that the deceased; a shop-keeper of village Jarwal had gone to Lucknow to purchase goods for his shop. On his return journey he got down from the train at about 10 p.m.

He had with him a box, a balti, a gunni bag and a jhola and other things. He engaged the appellant's cart to take him and his goods to his village. Two other persons also got on to the cart.

Neither the deceased, nor the articles which were with him nor the cart reached Jarwal. In the morning the body of the deceased was found near a bridge in the vicinity of Jarwal.

During investigation on the fourth day after the occurrence the appellant gave the key of his kothri to the police and from the kothri, a dhoti, a box, a balti, a chadar, a gunny bag and a jhola were recovered which were_identi fied as belonging to the deceased.

A big knife was also recovered from the kothri which the appellant disowned but could not explain how it was found in his home.

The appellant on examination before the Sessions Judge under s. 342 of the Code of Criminal Procedure stated that the deceased asked him to take his goods in the cart at about 10 p.m. when he got down at the Railway Station.

Two other men were also in the cart who got down at the Sugar Mill gate near the Railway Station. At Raduayan Bridge three men enquired if the deceased was in the cart. The deceased responded

and got down from the cart asking the appellant to halt his cart near Ja.rwal Bazar Bridge where he waited for the deceased up to

March 12

WasimKhan v.

The State of Uttar Pradesh

4 a.m. but he did not turn up. Not knowing the house of the deceased he took the dead man's goods to his own house as his buffaloes were very hungry. He stated further that he bad handed over all the articles of the deceased person to the police which he had locked in the kothri.

Held, that recent and unexplained possession of the stolen pro party while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder. All the facts which tell against the appellants especially his conduct indicating consciousness of guilt1 point equally to the conclusion that he was guilty as well of the murder as of the robbery.

The Emperor v. Sheikh Neamatulla ([1913] 17 C.W.N. 1077), Queen-Empress v. Sami and Another ([1890] LL.R. 13 Mad. 426), Emperor v. Ghintamoni Shahu (A.LR. 1930 Cal. 379), In re Guli Venkataswami {A.LR. 1950 Mad. 309), and Ramprashad M1tkundram Raiput v. The Grown (A.LR. 1949 Nag. 277), referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 24 of 1956.

On appeal by special leave from the judgment and order dated the 26th September 1955 of the Allahabad High Court (Lucknow Bench) in Criminal Appeal No. 195 of 1955 and Capital Sentence No. 17 of 1955 arising out of the judgment and order dated the 11th April 1955 of the Court of the Sessions Judge at Babraicb in Criminal S.T. No. 9 of 1955.

D. R. Prem, for the appellant.

K. B. Asthana and 0. P. Lal, for the respondent.

1956. March 12.

The Judgment of the Court was delivered by

IMAM J.-Tbe appellant was sentenced to death for the murder of one Ram Dularey. He was also sentenced to seven years' rigorous imprisonment for having robbed the murdered man of bis goods.

He was tried along with two other persons, who were acquitted, by the Sessions Judge of Babraich. All the four assessors, who attended the trial, were of the opinion that the appellant was guilty. The High Court of Allahabad affirmed the conviction and the sentence and this appeal is by special leave.

Certain facts have been proved beyond all doubt.

Indeed, the most important of them are admitted by the appellant in his statement under section 342 of the Code of Criminal Procedure when examined in the Court of Sessions. It has been established by the evidence in the case that the deceased Ram Dularey, a shop-keeper of J arwal, had gone to Lucknow to purchase goods for his shop. On his return journey, he got down from the train at Jarwal Road Station on the 2nd of July, 1954, at about 9-30 p.m. He had with him articles consisting of a box, a balti, a gunny bag, jholas and other things. Shortly thereafter, he engaged the appellant's cart to take him and his goods to his village. Two other persons also got on to the cart.

The appellant was driving the cart.

Neither the deceased nor the articles, which were with him, nor the cart ever reached Jarwal. In the morning, Ram Dularey's body was found near a bridge in close vicinity of Jarwal. Information was sent to the police who commenced investigation and their enquiries led them to the appellant, who was arrested on the 6th of July, 1954. The appellant gave the key of his kothri to the police with which it was opened.

From the kothri numerous articles were recovered, including a big knife Ex. 20 with blood-stains, a dhoti Ex. 3, a box Ex. 9, a balti Ex. 1, a chadar Ex. 2, a gunny bag Ex. 1:3 and a jhola Ex. 24. It is not necessary to give the details of the other articles recovered. The knife was sent to the Chemical Examiner along with the dhoti.

Although minute blood-stains were detected on the knife, they were not sufficient to enable a comparison in a blood group test. No blood was discover:ed on the dhoti.

The dhoti Ex. 3, the box Ex. 9, the balti Ex. 1, the chadar Ex. 2, the gunny bag Ex. 13 and the jhola Ex. 24 have been identified as belonging to the deceased Ram Dularey.

When examined under section 342 of the Code of Criminal Procedure by the Sessions Judge, the appellant stated that the deceased Ram Dularey had asked him to take his goods in his cart and it was agreed that Rs. 2 would be paid as the fare.

The appellant

Wasim Khan v.

The State of Uttar Pradc sh

ImamJ.

Wasim f(han v.

The State of Uttar Pradesh

Imam/.

took the deceased on his cart with his goods including the box Ex. 9.

Two other men were also in the cart who got down at the Sugar Mill gate at the Railway Station. At the Raduayan Bridge three men enquired if Ram Dularey was in the cart. Ram Dularey responded and got down from the cart asking the appellant to halt his cart at Jarwal Bazar Bridge, where he waited for the deceased until 4 a.m., but the deceased did not turn up. As the appellant did not know the house of the deceased in Jarwal Bazar, he took the dead man's goods in his cart to his own house as his buffaloes were very hungry. To the question as to whether any article of the deceased was recovered from his house by the police, the appellan_t stated that he handed over to the police all the property of the deceased which he had locked in the kothri. He asserted that he had told the people in his village as well as the Mukhia that he would hand over the property to its owner when he came to take it. Concerning the knife, he disowned its ownership and could not say how it came to be found in his house. So far as the dhoti Ex. 3 is concerned, the appellant claimed it as his.

On behalf of the appellant, it was urged that the evidence iu the case was insufficient to establish any of he charges framed against him.

In the alternative, it was suggested, that as the co-accused of the appellant had been acquitted the latter could not be convicted of the offence of murder by the application of the provisions of section 34 of the Indian Penal Code in the absence of proof that any act of his caused the death of Ram Dularey. It was also submitted that no question was put by the Sessions Judge to the appellant when he was examined under section 342 of the Code of Criminal Procedure concerning the act of murder or robbery.

We have examined the statement of the appellant recorded under section 342 of the Code of Criminal Procedure by the Sessions Judge. At the very commencement of the record of that statement, the Sessions Judge read out the appellant's statement under section 342 of the Code of Criminal Procedure before

the Committing Magistrate and enquired whether it was correct, to which the appellant replied in the affirmative. The statement of the appellant before the Magistrate is admissible under section 287 of the Code of Criminal Procedure. The Magistrate pointedly asked the appellant as to whether he along with the other accused murdered Ram Dularey and had taken his property to which the appellant replied in the negative. It was not necessary for the Sessions Judge to specifically repeat the same when the appellant admitted his statement before the Committing Magistrate as correct when read out to him. Apart from this, when the statement of the appellant to the Sessions Judge is read as a whole, it clearly shows that the appellant knew what the accusation against him was and he offered an explanation for the disappearance of Ram Dularey from his cart and for his possession of the deceased's goods.

There is no justification for supposing that there had been any prejudice caused to the appellant on account of improper or insufficient recording of his statement by the Sessions Judge under section 342 of the Code of Criminal Procedure.

On the facts proved beyond question it is clear that the last time the deceased was seen alive was in the company of the appellant and two other persons when the cart started for Jarwal and his goods were on that cart. There is, however, no evidence as to what happened in the course of the journey. Concerning that we have only the statement of the accused.

The evidence next establishes that after the cart started, next morning, the 3rd of July, the dead body of Ram Dularey was found not far from Jarwal. His goods had disappeared and some of them at any rate were found in the possession of the appellant on the 6th of July.

The real question is whether the evidence in the case establishes that the appellant murdered and robbed Ram Dularey. The evidence is circumstantial.

Before we deal with that evidence, it is necessary to consider how far recent possession of property of a deceased, in circumstances clearly indicating that he

Wasim Kha"

The State of Uttar Pradesh

Jt11a1n J.

WasimKhan v.

The State of Uttat' Pt'ad.esli

had been murdered and robbed, would suggest that not only the possessor of the property was a thief or a receiver of stolen property, but that it also indicated that he was guilty of a more aggravated crime which had connection with the theft. In the case of The EmperrJr v. Sheikh Neamatulla(') Sir Lawrence Jenkins had the occasion to examine this question. After referring to section 114 of t.he Evidence Act, he quoted the following passage from Wills on Circumstantial Evidence:

"the possession of stolen goods recently after the loss of them, may be indicative not merely of the offence oflarceny, or of receiving with guilty knowledge, but of any other more aggravated crime which has been connected with theft. This particular fact of presumption commonly forms also a material element of evidence in cases of murder; which special application of it has often been emphatically recognized".

In the case of Queen-Empress v. Sami and Another(') at page 432, the learned Judges of the High Court observed, "Under these circumstances, and in the absence of any explanation, the presumption arises that any one who took part in the robbery also took part in the murder.

In cases in which murder and robbery have been shown to form parts of one transaction, it has been held that recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder.

All the facts which tell against the appellant, especially his conduct indicating a consciousness of guilt, point equally to the conclusion that he was guilty as well of the murder as of the robbery .................... ".

In the case of Emperor v.

Chintamoni Shahu('), the opinion was expressed that "the possession of stolen goods recently after the loss of them may be indicative not merely of the offence of larceny or of receiving with guilty knowledge but of any other more aggravated crime which has been

(1) [1918] 17 C.W.N.1077. {2) [1890] I.L.R. 18 Mad. '26, ·

(8) A.I.R. 1930 C•!. 879.

connected with the theft; this particular fact of presumption forms also a material element of evidence in the case of murder". A similar view seems to have

been taken in the case of In re Guli Venkataswamy(1) as well aa. in the case of Ramprashad Makundram Rajput v. The Orown(9).

In the present case it is established beyond doubt that the deceased travelled with his goods with the appellant on his bullock cart. He should have reached his destination Jarwal in the course of the night. He never got there. Obviously, he was murdered on his way home.

On the appellant's own statement, he and the deceased were alone in the cart after the other two persons had got off the cart at the Sugar Mill gate.

Thereafter the deceased was never seen alive by any one.

He was found murdered.

The appellant was found in possession of the deceased's goods three days afterwards. The appellant made no effort to trace the whereabouts of the deceased or lodge information of his disappearance from the bullock cart. The appellant has told the court that some people called the deceased while the cart was on its journey and the deceased told him to wait for him at a certain place.

He waited until 4 a.m. but the deceased never turned up.

This should have aroused his suspicions and he should have informed the police or someone in authority about it.

He says he informed the Mv.khia and all the people about it.

Neither the Mukhia nor anyone has been examined by the appellant to support his story. Reliance was placed on thestatement of Iftikhar Ahmad P.W. 7, who spoke of a rumour in the village that the appellant had brought the property of a man on his cart who had gone away and that this rumour had been spread by the appellant.

It is clear, however, that the witness was not speaking of this from his personal knowledge and his statement is not legal evidence. On the other hand, if really the appellant had spread such a rumour there is no adequate explanation for his failure to inform the authorities.

(1) A.I.R. 1950 Mad. 809.

(2) A.I.R. 1949 Nag. 277,

Wasi111 Khan v.

The State of Uttar Praduh

I111a111 J.

Wasim Khan v.

The State of Uttar Pradesh

knew he was in possession of a large number of articles belonging to the man who had hired his cart but had disappeared in very strange circumstances.

In addition, there is no explanation for his possession of a big blood-stained knife, a weapon which if used against the deceased, could have caused the injuries found on him. It is true that the blood stains were minute and have not been established to be of human blood. The appellant, however, denied that theknife belonged to him, and has not explained as to how it came to be in his possession.

It is impossible to believe his story that he waited until 4 a.m. for the deceased to return. The cart had started from Jarwal Road Station at about 10 p.m.

It could not have been more than a couple of hours later that the deceased left the cart.

To wait from that time until 4 a.m. at a place not far from Jarwal itself appears to be a fantastic story.

It is true that none of the clothes of the appellant were found to be bloodstained, as they should have been, if he had participated in the murder, having regard to the nature of the injuries on the deceased.

These clothes were not seized until the 6th July, some three days later, and the appellant could have removed all traces of blood stains from his clothing in that time.

The appellant was convicted of the offences of mur.der and robbery by the Sessions Judge by the application of section 34 of the Indian Penal Code.

The charge framed, however, was one of murder and robbery and there was no mention of these offences having been committed in the furtherance of a common intention. The High Court, however, found that the appellant along with two others committed these offences and they shared in the goods robbed. On this finding, even if the co-accused of the appellant were acquitted, the appellant could be convicted by the application of the provisions of section 34 of the Indian Penal Code.

The charge framed against the appellant was for murder and robbery and the only question to be decided was whether the evidence was sufficient to support such a charge or did it merely establish offences less grave in nature. We think it

~· -

was and are satisfied thatit establishes the offences of murder and robbery against the appellant and not merely the minor offence of robbery or theft. It is impossible to accept the submission that the evidence does not establish any offence having been committed by the appellant.

Having regard to what is established in the case and the principles deducible from the cases cited, we are satisfied that the appellant has been rightly convicted of the offences of murder and robbery. The appeal is accordingly dismissed.

SHAMBU NATH MEHRA v.

THE STATE OF AJMER.

[VIVIAN BOSE and CHANDRASEKHARA AIYAR JJ.]

Burden of proof-Proof of facts within especial knowledge- Facts eqiially within the knowudge of the prosecution and the accused, if "especially within the knowledge" of the accused-Illustration, Scope of-Indian Evidence Act (I of 1872), s. 106, Illustration (b).

The appellant was put up for trial under s. 420 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act of 194 7 for obtaining a total sum of Rs. 23-12-0 from the Government as T.A., being second class railway fares for two journeys, one from Aimer to Abu Road and the other from Aimer to Reengus, without having actually paid the said fares.

The prosecution proved from the railway books and registers that no such second class tickets were issued at Aimer on the relevant dates and the same witness who proved this also proved that tickets were not always issued and the passengers could pay the fare in the train and if the second class was fully booked, no further tickets were issued till the train arrived, in which case passengers sometimes bought third class or inter-class tickets and thereafter paid the difference to the guard of the train, if they could find second class accommodation on the arrival of the train. There was no proof that one or other of those courses were not followed by the appellant and the prosecution instead of proving the absence of any such payments, in the same way as it had proved the non-issue of second class tickets, relied on Illustration (b) to s. 106 of the Evidence Act and contended that it was for the appellant to prove that he had actually paid the second class fares.

WasimKhan v.

The State of Uttar Pradesh

Imamj.

March 12

Ram Krishan

State of Delhi

WASIM KHAN

THE STATE OF UTTAR PRADESH

B. P. SINHA

JAFER IMAM

AIYAR, JJ.

Jarwal

Lucknow

s. 342

Code of Criminal Procedure

K. B. Asthana

0. P. Lal

IMAM J.-Tbe

Ram Dularey

Babraich

High Court of Allahabad

section 342

Code of Criminal Procedure

J arwal

2nd of July, 1954

6th of July, 1954

section 342

Code of Criminal Procedure

section 34

Indian Penal Code

section 342

Code of Criminal Procedure

section 342

Code of Criminal Procedure

section 342

Code of Criminal Procedure

section 287

Code of Criminal Procedure

section 342

Code of Criminal Procedure

Jarwal

3rd of July

6th of July

State of Uttar Pradesh

section 114

Mukhia

Iftikhar Ahmad

State of Uttar Praduh

section 34

Indian Penal Code

section 34

Indian Penal Code

VIVIAN BOSE

CHANDRASEKHARA AIYAR

Scope of-Indian Evidence Act

s. 106

s. 420

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

Aimer

Reengus

s. 106


~· -

S.C.R.

SUPREME COURT REPORTS 199

was and are satisfied thatit establishes the offences of murder and robbery against the appellant and not merely the minor offence of robbery or theft. It is impossible to accept the submission that the evidence does not establish any offence having been committed by the appellant.

Having regard to what is established in the case and the principles deducible from the cases cited, we are satisfied that the appellant has been rightly convicted of the offences of murder and robbery. The appeal is accordingly dismissed.

SHAMBU NATH MEHRA v.

THE STATE OF AJMER.

[VIVIAN BOSE and CHANDRASEKHARA AIYAR JJ.]

Burden of proof-Proof of facts within especial knowledge- Facts eqiially within the knowudge of the prosecution and the accused, if "especially within the knowledge" of the accused-Illustration, Scope of-Indian Evidence Act (I of 1872), s. 106, Illustration (b).

The appellant was put up for trial under s. 420 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act of 194 7 for obtaining a total sum of Rs. 23-12-0 from the Government as T.A., being second class railway fares for two journeys, one from Aimer to Abu Road and the other from Aimer to Reengus, without having actually paid the said fares.

The prosecution proved from the railway books and registers that no such second class tickets were issued at Aimer on the relevant dates and the same witness who proved this also proved that tickets were not always issued and the passengers could pay the fare in the train and if the second class was fully booked, no further tickets were issued till the train arrived, in which case passengers sometimes bought third class or inter-class tickets and thereafter paid the difference to the guard of the train, if they could find second class accommodation on the arrival of the train. There was no proof that one or other of those courses were not followed by the appellant and the prosecution instead of proving the absence of any such payments, in the same way as it had proved the non-issue of second class tickets, relied on Illustration (b) to s. 106 of the Evidence Act and contended that it was for the appellant to prove that he had actually paid the second class fares.

WasimKhan v.

The State of Uttar Pradesh

Imamj.

March 12

Shambu Nath Mehra

Held, that Illustration (b) to s. 106 of.the Evidence Act had no application, the evidence adduced by the prosecution did not warrant a conviction and the accused should, having regard to the long lapse of time, be acquitted.

The St 1 v.

That •· 106 of the Evidence Act does not abrogate the well a e of 1mcr established rule of criminal law that except in very exceptional classes of cases the burden that lies on the prosecution to prove its case never shifts ands. 106 is not intended to relieve the prosecution of that burden.

On the contrary, it seeks to meet certain exceptional cases where it is impossible, or disproportionately difficult, for the prosecution to establish facts which are. especially within the knowledge of the accused and which can be proved by him without difficulty or inconvenience. But when knowledge of such facts is equally available to the prosecution if it chooses to exercise due diligence, they cannot be said to be especially within the knowledge of the accused and the section cannot apply.

Attygalle v. Emperor, (A.J.R. 1936 P.O. 169) and Senevlratne

v. R., ([1936] 3 All E.R. 36), referred to.

That illustrations to a section do not exhaust its full content even as they cannot curtail or expand its ambit, and in applying e. 106 the balance of convenience, the comparative labour involved in finding out and proving the facts and the ease with which the accused can prove them must be taken into cOnsideration.

That cases coming under ss. 112 and 113 of the Indian Railways Act to which Illustration (b} to s. 106 has obvious application stand on a different footing.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 65 of 1954.

Appeal by special leave from the judgment and order dated the 2nd January 1953 of the Judicial Commissioner's Court at Ajmer in Criminal Appeal No. 3of1952 arising out oftlie judgment and order dated the 4th January, 1952 of the Court of Sessions Judge at Ajmer in Criminal Appeal No. 300of1951.

B. P. Berry and B. P. Maheshwari, for the appellant.

G. K. Daphtary, Solicitor-General of India (Porus A. Mehta and P. G. Gokhale, with him) for the respondent.

1956. March 12. The Judgment of the Court was delivered by BosE J.-The appellant, S.N. Mehra, a Camp Clerk

in the office of the Divisional Engineer Telegraphs, 1956 Ajmer, has been convicted of offences under section ShambuNath 420 of the Indian Penal Code and section 5(2) of the Mehra Prevention of Corruption Act, 1947 (Act II of 1947). v.

He was sentenced to two years' rigorous imprison- The State of Afmer ment and a fine of Rs. 100 on each count.

The substantive sentences are concurrent.

Bose/.

The substance of the offences for which he was convicted lay in obtaining sums totalling Rs. 23-12-0 from Government as T.A. for two journeys, one from Ajmer to Abu Road and the other from Ajmer to Reengus. The money represents the second class railway fare for these journeys.

The allegation against him is that either he did not travel at all between those places on the relevant dates, or, if he did, that he did not pay the fare.

He appealed to the. Sessions Judge at Ajmer and was acquitted~ The State filed an appeal against the acquittal to the Judicial Commissioner of Ajmer.

The learned Judicial Commissioner accepted the appeal and remanded the case for retrial before a Special Judge because, by reason of certain amendments in the law, only a Special Judge could try an offence under section 5(2) of the Prevention of Corruption Act at the date of the remand.

The appeal here raises certain questions about sanction which we do not intend to discus~ because, in our opinion, the evidence adduced does not justify

a retrial as no conviction for those two offences could be based on it.

It was first alleged that the appellant did not tra.vel at all on the relevant dates and that the burden of proving that he did was on him.

We do not think this issue arises because the charge 11ossumes that he did travel and there is no evidence before us to justify even a prima facie inference that he did not. The charge runs-

"Tha. t you, on or aboutetc .................... cheated the Government ................. by dishonestly inducing the Government to pay you Rs. 62-9-0 on account of T.A. for the journeys performed, on the above-mentioned days .................... "

1956 There is no suggestion that the journeys were. not

ShambuNath performed and only purported to be; and it would be Mehra unfair to permit the State to go back on what it said v. in the charge at this stage, especially after the appel- The State of Afmer !ant has entered on his defence and virtually admitted that he did travel on those dates; in any case, he has not denied the fact and that would naturally operate Bose J, to his disadvantage if the prosecution were to be allowed to change its position in this way. We must therefore accept the fact that he did travel as alleged on the relevant dates, and the only question that remains is whether he paid the second class fares which he later claimed, and obtained, from Government as T.A. for those journeys.

The only proof that is adduced in support of the allegation that he did not is that no second class tickets were issued at Ajmer on the relevant dates either for Abu Road or for Reengus. This is proved by the Booking Clerk Ram Dayal, P.W. 4.

But the same witness proves that tickets are not always issued and that passengers can pay the fare on the train; also, if the second class is fully booked no further tickets are issued till the arrival of the train.

In that case, passengers sometimes buy a third class or an inter-class ticket and then pay the difference to the conductor or guard of the train if they are able to find second class accommodation when the train arrives. There is no proof that one or other of these courses was not followed on the dates with which we are concerned.

The railway registers and books would show whether or not any such payments were made on those dates and the State could have proved the absence of such payments as easily as it was able to prove, from the same sort of material, that no second class tickets were issued.

Instead of doing that, the State contented itself with saying that no second class tickets were issued and, then relying on Illustration (b) to section 106 of the Evidence Act, it contended that the burden of proving that the accused did pay the second class fares was on him.

Illustration (b) runs thus:

"A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him".

ShambuNath But this is only an illustration and must be read Mehra subject to the section itself and cannot travel beyond v. it. The section runs- The State of Ajmer "When any fact is especially within the knowledge of any person, the burden of proving that fact is on him".

The stress, in our opinion, is on the word "especially".

Section 106 is an exception to section 101. Section 101 lays down the general rule about the burden of proof.

"Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist".

Illustration (a) says-

"A desires a Court to give judgment that Bshall be punished for a crime which A says B has committed.

A must prove that B has committed the crime".

This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is .certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident 'that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the

Bose].

Sliambu Nath

Mehr'a

The State of Ajtner

Bose}.

burden lies on an accused person to show that he did not commit the crime for which he is tried.

These cases are Attygalle v. Emperor(') and Seneviratne v.

R.(').

Illustration (b) to section 106 has obvious reference to a 'l'ery special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc.

Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not he purchased a ticket. On the other hand, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.

We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.

Now what is the position here? These journeys

(1) A.LR. 1936 P.O. 169.

(2) (1936] S All E.R. 36, 49.

were performed on 8-9-1948 and 15-9-1948.

The pro- 1956 secution was launched on 19-4-1950 and the app, ellant ShambuNath was called upon to answer the charge on 9-3-1951; Melira and now that the case has been remanded we are in v. the year 1956.

The appellant, very naturally, said The State of Ajmer on 27-4-1951, two and a half years after the alleged offences: Bose J. "It is humanly impossible to give accurate explanations for the journeys in question after such a lapse of time".

And what of the prosecution? They have their registers and books, both of the railway and of the department in which the appellant works. They are in a position to know and prove his official movements on the relevant dates. They are in a position to show that no vouchers or receipts were issued for a second class journey by the guard or conductor of the trains on those days.

This information was as much within their "especial" knowledge as in that of the appellant; indeed it is difficult to see how, with all the relevant books and other material in the possession of the authorities, these facts can be said to be within the "especial" knowledge of the appellant after such a lapse of time however much it may once have been there.

It would, we feel, be wrong to allow these proceedings to continue any longer. The appellant has been put upon his trial, the prosecution has had full and ample opportunity to prove its case and it can certainly not complain of want of time to search for and prepare its material. No conviction could validly rest on the material so far produced and it would savour of harassment to allow the continuance of such a trial without the slightest indication that there is additional evidence available which could not have been discovered and produced with the exercise of diligence at the earlier stages.

We set aside the order of the Judicial Commissioner and restore the order of the Sessions Judge acquitting the appellant on both counts of the charge framed against him.

SHAMBU NATH MEHRA

THE STATE OF AJMER

VIVIAN BOSE

CHANDRASEKHARA AIYAR JJ.

Scope of-Indian Evidence Act

s. 106

s. 420

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

Aimer

Reengus

s. 106

WasimKhan

State of Uttar Pradesh

Shambu Nath Mehra

s. 106

ss. 112 and 113

Railways Act

s. 106

B. P. Berry

B. P. Maheshwari

G. K. Daphtary

Porus A. Mehta

P. G. Gokhale

S.N. Mehra

Indian Penal Code

section 5(2)

Ajmer

section 5(2)

Prevention of Corruption Act

ShambuNath

State of Afmer !ant

Ram Dayal

section 106

Section 106

section 101

Section 101

section 106

India

Sliambu Nath

State of Ajtner

section 106

sections 112 and 113

Railways Act

Melira

State of Ajmer

Bose


THE SUPREME COURT REPORTS

HARIHAR PRASAD SINGH AND ANOTHER 1956 v.

MUST. OF MUNSHI NATH PRASAD

AND OTHERS.

[VIVIAN BosE, VENKATARAMA AYYAR and

0HANDRASEKHARA AIYAR JJ.]

Occupancy Right-If can be acquired by lessee from mortgagee- Presumption of record of rights-How rebutted-Proprietor's private

land-Mode of proof-Bihar Tenancy Act (VIII of 1885), ss. 5(3), 21, 108-B, 120(2)-Transfer of Property Act (IV of 1882), s. 7C(a) -Evidence Act (I of 1872), a. 90.

The appellants were the purchasers of the mortgagors' interests in the agricultural lands in suit and deposited the amounts due on the mortgages in court under s. 83 of the Transfer of Property Act, which were withdrawn by the representatives of the mortgagees and the 'mortgages were redeemed.

They were obstructed in taking khe.s possession of the lands by tenants who were recorded e.s "settled raiyata" in the finally published record of rights and brought the suit for recovery of possession from the tenants and, e.lternatively, for ilamages against the representatives of the mortgagees. The sub ordinate Judge found that the lands were the private lands of the proprietors and the tenants were inducted not by them but by the modgagees in possession by a lease for a term which was neither bona fide nor binding on the appellants and passed a decree in ejectment.

On appeal, the High Court held that the lands were not the private lands of the mortgagors, the lease was bona fide and the recognition of the lessees as tenants by the mortgagees confened on them rights of occupancy in the suit lands and dismissed the suit. The respon dents relied on the presumptions under ss. 103-B and 120(2) of the Bihar Tenancy Act and contended that the recognition by the mart go.gees of their tenancy right had the effect of conferring on them the rights of occupancy under the Act.

Held, that .an entry in the record of rights published under s. 103-A of the Bihar Tenancy Act does not create rights huh merely raisesa presumption under s. 103-B of the Act that such rights exist, which can be rebutted if it can be shown that the materials on which it was based do not justify it.

Bogha Mowr v. Ram Lakhan, ((1917) 27 Cal. L.J. 107) and Eakub Ali v. Muhammad Ali ((1928) 49 Cal. L.J. 352), referred to.

That where, as in the present ca.se, no evidence was produced before the authority who made the record, one bas only to produce

January 16

Harihar Prasad Singh and another

v. t.f11st. of M11nslii

Nath Prasad

and others

such evidence as satisfies the court in order to rebut the presumption. This is equally true with regard to the presumption enacted bys. 120(2) of the Act with regard to the proprietor's private land.

That s. 120 of the Bibar Tenancy Act merely enacts certain rules of evidence for determining whether a disputed land is the proprietor's "private" land. It does not preclude the proprietor, even if he cannot prove that he cultivated the land as such for 12 years prior to the date of the Act, from adducing other evidence to show that the land is his private land.

Kisho Prashad Singh v. Parmeshri Prasad Singh, ((1923] I.L.R. 2 Pat. 414) and Bindeshwari Prasad Singh v. Kisho Prasad Singh ([1926] L.R. 53 I.A. 164), relied on.

That as the mortgagees were neither proprietors nor tenureholders as defined by the Bihar Tenancy Act, persons inducted by them could not be raiyats within the meaning of s. 5(3) of the Act so as to acquire any rights of occupancy under s. 21 of the Act.

Mahabir Gope v. Harbans Narain Singh ([1952] S.C.R. 775). applied.

Nor could the provisions of s. 76 (a) of the Transfer of Property Act ha of any avail. Assuming that the lease grantad by the mortgagees continuad oven altar termination of tho period fixed therain, that could confer on tho lassees no more than the status of tenants from ysar to yaar, in which case, their possession would cease with tho termination of the agricultural year during which the mortgages wera radaamed.

Rajendra Nath v. Dinu Pradhan (A.I.R. 1930 Cal. 738), disapprovad.

Binod Lal Pakrashi v. Kal1t Pramanik ((1893] I.L.R. 20 Cal. 708), doubted and hold inapplicable.

Pramatha Nath v. Bashi Bhltsan (A.I.R. 1937 Cal. 763), <listing• uishad.

Case-law discussed.

Held further, that there is no presumption of genuineness in favour of certified copies of documents under s. 90 of the Evidence Act, nor does that section authorise the raising of a presumption as to the existence of authority of an a.gent to act £or another.

Basant v. Brijraj ((1935] L.R. 62 I.A. 180), referred to.

C1v1L APPELLATE JuR1SD1CTloN: Civil Appeal No. 107 of 1953.

Appeal by special leave from the judgment and decree dated the 7th February 1949 of the Patna High Court in appeal from original decrees No. 230

and 268of1945 arising out of the decree dated the 9th

1956 day of August 1945 of the Second Court of Subordinate Judge at Monghyr in Title Suit No. 40 of 1943.

P. K. Chatterjee, for the appellants.

Harihar Prasad Singh a11d a11at/1er

Taraehand Brijmohanlal, B. 0. Misra e..nd 8.

1 Barneshwar Prasad, for respondents Nos. 3 to 6, 20

to 25 and 27 to 39.

1956. January 16. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The properties which are the subject-matter of this litigation are agricultural lands of the extent of 18 acres 23 cents situate in Mauza Chowki.

They originally belonged to Khiran Rai, Firangi Rai and others, and were usufructuarily mortgaged by them on 10-8-1900 to Babunath Prasad and Babu Misri Lal under two sudbharna deeds, Exhibits 2 and 3, for a sum of Rs. 1,600. The defendants of the first party are the representatives of these mortgagees. In execution of a money decree passed against the mortgagors, 9 acres 6 cents out of the above lands were brought to sale on 11-6-1907 and purchased by Rameshwar Prasad Singh, the undivided.uncle of the first plaintiff. On 23-12-1913 the remaining extent of 9 acres 17 cents was purchased by the first plaintiff from the mortgagors, and thus, the plaintiffs who were members of a joint Hindu family became entitled to all 1 the interests of the mortgagors in the suit lands. In 1943 they deposited under section 83 of the Transfer of Property Act the amounts due on the mortgage deeds, Exhibits 2 and 3, in the court of the District Munsif, Monghyr. The defendants of the first party withdrew the amount, and the mortgages thus became redeemed. When the plaintiffs attempted to take khas or actual possession of the lands, they were obstructed by the defendants of the second party who claimed occupancy rights therein. The plaintiffs then instituted the suit out of which the present appeal arises, in the court of the Subordinate Judge, Monghyr, for recovery of possession of the lands from the second party defendants.

Must. of M11nsl1i

N atli Prasad and others

1956 • The plaintiffs alleged that the lands were 'kamat

R .h P 4 khudkast', which had been in the personal enjoyment Sin";: ::a;;:~., of Khira~ Rai and Firangi Rai and thereafter of the v. mortgagees and the defendants of the first party by Mun. of Mrmshi virtue of the sudbharna deeds, Exhibits 2 and 3, that

Nalh Prasad the second party defendants claimed rights as occuand others d 1 b h pancy ra1yats un er a sett eme.nt y t e mortgagees, Vcnkalarama that the settlement was not real or bona fide, and was Ayyar J. not binding on the mortgagors. In the alternative, the plaintiffs claimed damages against the defendants of the first party, if it was found that the second party had acquired occupancy rights under a settlement from them. Both sets of defendants denied that the lands were kamat lands, or that the defendants of the first party settled the defendants of the second party as raiyats on the land. They pleaded that the latter had been in possession even prior to the mortgages, Exhibits 2 and 3, under a settlement with the mortgagors, and that accordingly the plaintiffs were entitled neither to possession from the second party nor damages from the first party.

The Subordinate Judge of Monghyr who tried the suit, held that the lands were private lands of the proprietors, that the defendants of the second party or their predecessors-in-title had not been inducted on the lands by the mortgagors, that they were put into possession by the mortgagees only under the lease deed, Exhibit. 2(a) dated 27th May 1905, that they were mere creatures of the first party, and that the settlement was not bona fide and not binding on the plaintiffs. He accordingly granted a decree in favour of the plaintiffs in ejectment. Against this judgment, there was an appeal by the defendants to the High Court of Patna, which agreed witn the Subordinate Judge that the defendants of the second party were inducted into possession only in 1905 under the lease deed, Exhibit 2(a), and that they were not raiyats settled by the mortgagors prior to

1900. But the learned Judges held that the suit lands were not proved to be 'sir' or private lands, that the

second party defendants were not the creatures of the first party, that the lease deed, Exhibit 2(a) was a

bona fide transaction, and that the recognition of the 1956 defendants of the second party by the mortgagees as ..,. .h P .. , I n:aN ar rasa,,. tenants would confer occupancy rights on them. n Singh and another the result, the suit was dismissed. The plaintiffs apv. peal. It may be stated that the alternative claim for Must. of Munshi damages against the first party was abandoned by Nath Prasad 1. the plaintiffs, and the only relief now claimed is posand others session of lands as against the second party. Mr.

Venkatarama Misra, counsel for the first prty, had accordingly A; nar J. nothing to say about the merits of the controversy between the appellants and the second party defendants, and merely pressed for his costs being awarded.

It was tha second party appearing by counsel Mr.

Tarachand Brijmohan Lal, that vigorously contested the appeal.

The substantial question that arises for our decision is whether the lands in dispute are private lands of the proprietor. Section 120(2) of the Bihar Tenancy Act VIII of 1885, hereinafter referred to as the Act, enacts a presumption that "land is not a proprietor's private land, until the contrary is shown". And further, there was a cadastral survey in 1908, and in the final notification published under section 103-A of the .Act, the lands were recorded as in the possession of the second party defendants, whose status was described as 'kaimi' or settled raiyats. Under section 103-B(3), "every entry in a record of rights so published shall be evidence of the matter .referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect". The result of both these provisions is that the burden is on the proprietor clearly to establish that the lands are his private lands. Some oral evidence has been adduced by both sid'es as to the character of the lands, but it is too vague, recent and interested to be of much value, and the question therefore falls primarily to be decided on the documentary evidence in the case.

The earliest document bearing on the question is Exhibit 1, which is a mortgage deed executed by the previous owners, Firangi Rai and others, to Harbans Narain Singh on the 10th April, 1893 over a portion

1956 of the suit lands. Therein, it is recited that the

HariharPrasad mortgagors. "mortgge, _hypothecate ad render liabl~ Singh and another the properties const1tutmg the proprretory mukarn

v. interest, with all the zamindari rights and claims in-

Must. of Munshi eluding the khudkasht kamat lands".

The word Nath Prasad 'khudkasht' means personal cultivation, and that is and others a neutral expression, which might include both pri- • V•nkatarama vate lands and bakasht lands, that is to say, raiyati AnarJ. lands, which had come into the possession of the proprietor by surrender, abandonment or otherwise.

But the word 'kamat' has a definite connotation, and means private lands. Vide section 116 of the Bihar Tenancy Act. If the recital in Exhibit I is to be accepted as correct, the lands were on that da, te in the personal cultivation of the proprietor as private lands. Exhibits 2 and 3 are the sudbharna deeds dated 10-8-1900 under which the first party defendants got into possession of the suit lands. They are in the same terms, and recite that the mortgagees are to enter into possession and occupation of lands, "cultivate or cause to be cultivated the same for their self-satisfaction", and that after the expiry of the period fixed for redemption, the mortgagors are to pay the mortgage amounts in one lump and take back the properties "in our sir and khas possession". The word 'sir' is synonymous with 'kamat' and 'ziraat', and means private lands of the proprietor. (Vide section 116).

These recitals .are of considerable importance, as they occur in deeds inter-parties. The respondents are right in contending that tliey cannot be regarded as admissions by the mortgagees as the deeds were executed by the mortgagors; but they are certainly admissible under section 13 of the Evidence Act as assertions of title, and as it is under these documents that the first party defendants claim, their proba.tive value as against them and as against the second party defendants who claim under them is high. Exhibit 1 (b) is a simple mortgage executed by Firangi Rai and others on 21-12-1901 in favour of one Ch ho tu Singh over some properties forming part of the suit lands. It also contains the recital that these properties are kamat khudkasht landa.

There

is finally the lease deed executed in favour of the first 111s6 P'."rty by the defedants of the secon~ party, Ex.hi- Harihar Prasatl bit 2(a) under which the latter came into possession Singhantlanother of the lands. It recites that the lands had been in v. the exclusive cultivation of Babu Nath Prasad and Must. of Munshi Babu Misri Lal, that the lessees will give up posses- Nath Prasad sion of the lands at the end of the term which was a and others period of 2 years, and that the lessors will be "com- Venkatarama patent to bring the lands mentioned in this kabuliat Ayyar J. under their exclusive cultivation". As these documents are ante litem motam, and as some of them, are inter-parties and extend over a considerable period of time, they form cogent and strong evidence that the lands are private lands.

Now, what is the evidence adduced by the defendants to rebut the inference to be drawn from them?

None. They simply trust to the presumptions in their favour enacted in sections 120(2) and 103-B of the Act to non-suit the plaintiffs. But these are rebuttable presumptions, and they have, in our opinion, been rebutted by the evidence in the suit, which is all one way.

It was argued for the respondents that even if the evidence referred to above was accepted, that would be insufficient under section 120 of the Act to support a finding that the lands were private lands. Section 120 runs as follows:

"(1) The Revenue Officer shall record as a proprietor's private land-

(a) land, which is proved to have been cultivated as khamar, ziraat, sir, nij, nijjot or kamat by the proprietor himself with his own stock or by his own servants or by hired labour for twelve continuous years immediately before the passing of this Act, and

(b) cultivated land which is recognised by village usage as proprietor's khamar, ziraat, sir, nij, nijjot or kamat.

(2) In determining whether any other land ought to be recorded as a proprietor's private land, the officer shall have regard to local custom, and to the question whether the land was, before the second day

of March, 1883, specifically let as proprietor's private

HariharPrasad land, and to any other evidence that may be pro- Singh and another duced; but shall presume that land is not a propriev. tor's private land until the contrary is shown.

Must. of Mumhi * * * Nath Prasad

and others

(3) If any question arises in a Civil Court as to

Venkatarama

A:; yar J. whether land is or is not a proprietor's private land, the Court shall have regard to the rules laid down in this section for the guidance of Revenue Officers".

The contention of the respondents is that under this section before lands could be held to be private, it must be shown that they had been cultivated as private lands for 12 years prior to the date of the Act, and that as the evidence in the case went back only to 1893, the requirements of the section were not satisfied. This argument proceeds on a misconception about the true scope of section 120.

That section does not enact that no land shall be recorded as private, unless it is proved to have been cultivated as private land for 12 years prior to the date of the Act.

It only provides that when that is proved, it shall be recorded as private land. But when no such evidence is forthcoming, it does not preclude that fact from being established by "any other evidence that may be produced'', if that is relevant and admissible under the provisions of the Evidence Act. That was the view taken in Maharaja Kesko Praead Singh v.

Parmeshri Prasad Singh('), and on appeal, the Privy Council agreed with it in Bindeshwari Prasad Singh

v. Maharaja Kesko Prasad Singh(').

The position, therefore, is that section 120 merely enacts certain rules of evidence to be followed in an enquiry as to whether a disputed land is 'ziraat'.

When in such enquiry the facts mentioned in section 120(1) are established, the law raises a presumptio juris et de jure that the lands arc private. But where such evidence is not available, that fact can still be est ab lished by other and satisfactory evidence. What has to be decided therefore is whether the evidence actu ally adduced by the plain tiffs in the present case is

(1) [1928J I.L.R. 2 P•tna 41'.

(2) [1020J es I.A. 10,,

sufficient to discharge the burden which the law casts

19S6 on them and to prove that the lands are 'kamat' or H .h-P c • ' 1 d F th l d f ar• ar rasau sir an s. or e reasons a rea y given, we are o Singh and another opinion that it is sufficient to justify a finding in the v. affirmative.

Must. of Munshi Strong reliance was placed by the respondents on Nath Prasad Exhibits F-1 and F-1(1) which are kbatians relating and others to the suit lands published on 7-12-1909 recording Vmkatarama them as in the possession of the defendants of the AyyarJ. second party as 'kaimi' and on the presumption under section 103-B that that entry is correct. This presumption, it is contended, is particularly strong in the present case, because the predecessors-in-title of the plaintiffs were parties to the proceedings and contested the same, and that the record of rights was made after considering their objections. The plain tiffs, however, denied that they were parties to the proceedings, and contended that they were taken behind their back by the mortgagees and the second party defendants acting in collusion with a view to defeat their rights. Exhibits A-1 and Al(l) are certified copies of the objection petitions stated to have been filed by the mortgagors under section 103-A of the Act, and they purport to have been signed by one Chulai Mahto as karpardaz of some of the mortgagors. The plaintiffs deny the genuineness of the signatures in Exhibits Al and A-1(1) and also the authority of Chulai Mahto to represent the mort gagors. There is no evidence that the signaturs on ExbibitsA-1 and Al(l) are true, but the defendants rely on the presumption enacted in section 90 of the Evidence Act in favour of their genuineness.

But Exhibits Al and Al(l) are merely certified copies of the objection petitions filed before the Survey Officer and not the originals, and it was held in Basant v. Brijraj(1) that the presumption enacted in the section can be raised only with reference to ori ginal documents and not to copies thereof. There is the further difficulty in the way of the respondents that the documents are signed by Chulai Mahto as agent, and there is no proof that he was an a.gent,

(1) [1981!] 69 I.A, 180,

1956 and section 90 does not authorise the raising of a

R .1 P d presumption as to the existence of authority on the ari iar rasa h . M h .

Singh and another part of C ulai a to to represent the mortgagors. v.

It is again to be noted that the objection on the Must. of Munshi merits raised in Exhibits A-1 and A-1(1) that the Nath Prasad lands are bakasht lands in the possession of mort- , and others gagees is not one which it was to the interests of the

Vcnkatarama mortgagors to put forward, as, if accepted, it would AyyarJ. preclude them from admitting tenants in respect of them, without conferring on them the status of settled raiyats and occupancy rights under section 21 of the Act. It was only if the lands were private lands that the proprietor would be entitled to cultivate them personally, and that was the claim which they had been making consistently from 1893 onwards. The claim put forward in Exhibits A-1 and and A-1(1) is destructive of the. rights claimed all along by the mortgagors, and amounts to an admission that the lands are not private and raises the doubt that the petitions were not really inspired by them. It should also be mentioned that at the hearing of the petition, no evidence was adduced by the mortgagors, and the decision of the Survey Officer was given practically ex parte. The mortgagees were parties to the proceedings, and they did not appear and produce the mortgage deeds, Exhibits 2 and 3, under which they got into possession, and which described the lands as 'sir'. It was to the interests of the mortgagees that the lands should be held to be 'sir', and it was further their dutyto defend the title of the mortgagors as against the claim made by the tenants that they were raiyati lands.

Why then did they not produce Exhibits 2 and 3 at the hearing?

The recitals in the lease deed, Exhibit 2(a) which was executed by the defendants of the second party, were inconsistent with their claim that the lands were raiyati.

Why did they not produce it at the hearing? There is therefore much to be said for the contention of the appellants that the proceedings evidenced by Exhibits A-1 and A-1(1) were collusive in character.

But even assuming that they were real, that

would not materially affect the result, as the true 1956 effect o. f a record of rights under section 103-A is not ,, • h h • d b • l narihar Prasad to create rig ts w ere none ex1ste ut s1mp y to Singh and nother raise a presumption under section 103-B that such / rights exist, and that presumption is one liable to be Must. of Munshi rebutted. There is a long line of authorities that a Nath Prasad person who attacks a record made under section 103-A and others as incorrect discharges the burden which the law casts Venkatarama on him under section 103-B by showing that it was AyyarJ. not justified on the materials on which it is based.

Vide Bogha Mower v. Ram Lakhan(1) and Eakub Ali

v. Muhammad Ali(9). And where, as here, no evidence was placed before the authorities who made the record, he has only to produce evidence which satisfies the court that the entry is erroneous. Whether the question is considered with reference to the presumption under section 120(2) or section 103-B, the position is the same. The plaintiffs who claim that the lands are kamat have to establish it by clear and satisfactory evidence. If the evidence adduced by them is sufficient, as we have held it is, to establish it, the presumption under section 103-B equally with that under section 120(2) becomes aisplaced. In the result, we are of opinion that the suit lands are the private lands of the proprietor.

It was next contended that even if the lands were private lands, that would not prevent the acquisition of occupancy rights by the tenants under Chapter V, as the restriction provided in section 116 in that behalf did not apply on the facts of the .present case, and that in consequence no relief in ejectment could be granted. Section 116 enacts, omitting what is not material, that "nothing in Chapter V shall confer a right of occupancy in a proprietor's private land where any such land is held under a lease for a term of years or under a lease from year to year". In the present case, the tenants got into possession under Exhibit 2(a), which was a lease for two years, and they would therefore be precluded from acquiring occupancy rights by virtue of that demise. But it is argued that the tenants continued in possession of

(1) (1917] 27 Olll. L.J. 107.

(2) [1928] 49 Cal. L.J. 852.

1956 the holdings even after the expiry of the term under

R "h Pr 4 Exhibit 2(a), paid the rent to the mortgagees who

Sin~~ a":.a .,:::~., recognised them as tenants, and that their status v. therefore was not that of tenants holding under a Must. of Mt,,.shi lease for a term or from year to year, and that ac-

Nath Prasad cordingly there was no impediment to their acquiring andoth•r& occupancy rights under Chapter V.

The point has

Venkata1"ama not been argued whether, as Exhibit 2(a) is an agri- AyyarJ. cultural lease, the tenants who held over after the expiry of the period fixed therein, should not be considered to hold as tenants from year to year, on the principle enacted in sections 106 and 116 of the Transfer of Property Act.

We shall proceed on the footing that on the findings of the High Court that the tenants were not the creatures or servants of the mortgagees, and that they had been in continuous possession paying rept to them, section 116 di.cl not debar them from acquiring rights under Chapter V. But the question is whether they acquired such rights under that Chapter.

Section 21 provides that every person who is a settled raiyat in a village shall have a right of occupancy in all land for the iiime being held by him as a raiyat in that village. Section 20 defines a settled raiyat as a person who holds continuously land for a period of 12 years in any village. Section 5(2) defines 'raiyat' as a person who has acquired a right to hold land for the purpose of cultivating it by himself or members of his family or servants or partners, and section 5(8) provides that "a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder".

The position therefore is that before a person can claim occupancy rights under section 21, he must establish that he is a raiyat as defined in sections 6(2) and 6(8), and as the defendants of the second party acquired the right to hold the lands for the purpose of c.ultivation from the first party mortgagees and not under the mortgagors, they are not raiyats as defined in section 5(8), and can claim•no rights under section

21. On behaff of the tenants, it was contended that as under section 58 of the Transfer of Property Act a

mortgage is a transfer of inerest in land, the mort- gagee is the owner of that interest and therefore a H .h Pr 4 proprietor for the purpose of section 5(3). Section 3(2) Sin~~ a':.t a:O~er defines a proprietor as meaning a person owning whev. ther in trust or for his own benefit an estate or part Mun. o/ Munshi of an estate. A mortgagee is no doubt the transferee Nath Prasatl bl d antl others of an interest in immova e property, an may rn a loose sense be said to be the owner of that interest.

Venkatarama But the definition of a proprietor requires that he AyyarJ. should own the estate or part thereof and not merely an interest therein. It would be a contradiction in terms to say of a mortgagee that he owns the estate over which he owns an interest. As observedinGhose on the Law of Mortgage in India, Volume I, page 77,

"Interest which passes to the mortgagee is not the ownership or dominion which, notwithstanding the mortgage, resides in the mortgagor".

The question whether for purposes of section 21 of the Act a tenant from a mortgagee can be held to be a raiyat as defined in section 5(3) was considered by this Court in Mahabir Gope and others v. Harbans Narain Singh and others(1), and it was held that a mortgagee is neither a proprietor nor a tenure-holder, and a tenant inducted by him on the lands is not a raiyat within the definition of those terms under the Act. That decision governs this.case.

The contention of the respondents that the mortgagees could be considered as tenure-holders within section 5(3) is equally untenable. Section 5(1) defines a tenure-holder as meaning a person who has acquired a right to hold lands for collecting rents or for bringing them into cultivation by establishing tenants thereon. In the present case, the lands were under the personal cultivation of the mortgagors at the time when they were mortgaged under Exhibits 2 and

3. There were then no raiyats on the land and no question of transferring the right to collect rent from them. The respondents relied on the terms in Exhibits 2 and 3 that the mortgagees might cultivate the lands or cause them to be cultivated at their pleasure, as authorising the establishment of tenants. But that

(ll [1902] s.c.R. 776, 1s1.

- ' (1956)

1956 clause would apply only if the lands had to be

H .h P d brought afresh under cultivation, and that was not art ar rasa th 't' h A h , h Singh and another e post ton ere. s t e mortgagees are ne1t er prov. prietors nor tenure-holders as defined in the Act, the Must. of Munshi tenants holding under them could not claim to be Nath Prasad raiyats as defined in sections 5(2) and 5(3), and no and other. occupancy rights could therefore be acquired by them

Venkatarama under section 21 of the Act.

Ayyar J.

It was next contended that the mortgagees bad the power under section 76 of the Transfer of Property Act to induct tenants on the land for purposes of cultivation, that such a transaction would be binding on the mortgagors, and that its effect would be to confer on the tenants the status of raiyats and that they would get occupancy rights under section 21 of the Act.

The decisions in Manjhil Lal Biswa Nath Sah Deo v. Mahiuddin('), Rajendra Nath v. Dinu Prodhan(9) and Pramatha Nath v. Bashi Bhusan(') were relied on in support of this contention. This argument proceeds on a confusion of two wholly independent concepts distinct in their origin and different in their legal incidents. The law is that a person cannot confer on another any right higher than what be himself possesses, and therefore, a lease created by a usufructuary mortgagee would normally terminate on the redemption of the mortgage. Section 76(a) enacts an exception to this rule. If the lease is one which could have been made by the owner in the course of prudent management, it would be binding on the mortgagors, notwithstanding that the mortgage has been redeemed. Even in such a case, the operation of the lease cannot extend beyond the period for which it was granted. In the present case, assuming that the mortgagees had the power under section 76(a) of the Transfer of Property Act to continue the lessees under Exhibit 2(a) as tenants on the lands after the termination of the period fixed therein, that would confer on them at best the status of tenants from year to year and not give them the right to continue in possession after te termination of the agricultural year during which the redemption

(1) [1926) 97 I.O. 8~2.

(2) A.I.R, 1980 Oal, 788, .

(3) A.I.R. 1987 Ool. 768.

. •

• .

• •

• • fi.SJ.R.

SUPREME COURT REPORTS 15

. . 1956 takes place:.In this view, the power of the mortgagee under s"ectiEMl 76(a) of the Transfer of Property Act • flarihar Prasad to indllJ)t ten.ants in the usual course of management would not avail the respondents to claim occupancy

Singh and another

rightover the lands. . .

Turning next to the provisions of th.e Bihar Tenancy Act, section°21 rpnfers on settled raiyats a permanent ri" 0 ht. of occupancy, p. rovided the conditions menv. lllust. of :4Iunshi

Nath Prasad and others

Venkatarama tioned in that sectbn are satisfied. But this right is AyyarJ.. a cteatu~ of the statue, 1'nd cannot be claimed apart from its provisio::is. A mortgagee is, as already ..stated, neithet a proprietor nor a tenure-holder, and a person °settled by him on the land does notnjoy

the stattus of a raiyat under sections 5(2) and 5(3). 1Ie is therefore not a person entitled under the terms of the statute to any occupancy rights. Thus, if the respondents cannot resist the suit for ejectment either

bj" reason of section 76(a) of the Transfer of Property Act or seetion 21 of the Bihar Tenancy Act, it is diffictlt to see how they could get such a right as the result of the interaction of both those sections.

In .1fanjhil Lal Bisu:a Nath Bah Deo v. JJ1ahiuddin(1), t'he suit was by a mortgagor after redemption to re- •cover possession of lands, which had been leased by the mortgagee. The proprietor claimed that the lands wero zirait; but the finding, however, was that they were• raiyat lands, and that tl::e mortgagee had inducted tenants into possession in the usual course of management. It was held that the tenavts could not be ejected.

The decision was expressly based 011 the fact that the lands were raiyati lands, and the learned Judges distinguished the cases in Mahadeo Prasad .Sahu v. Gajadhar Prasad Sahu(') and Jogeshwar JJ!azumdar v. Abed JJ!ahomed Sirkar(3) on the ground thflt the lands which were the subject of

mo•tgagtherein were zerait lands. . This decision does not support the' broad proposition for which the "rl'lflllondents contend, and is really against them, as the mortgage in the present case is of 'kamat' lands.

°In Rajendra Nath v. Di nu Pradhan('), the facts were

u, [1926J 97 1:c. 852.

(3) [1686] 3 C.W.!'1. 13 .

• •

(9) [1922] 73 I.C. 358. ·

(i) A.I.R. 1930 Cal, 738.

Hariha' PrasatJ.

Singh cind another

Musi, of MUffshl

Nath Prasad

and others

Venkatarama

AyyarJ.

similar to those in Manjhil Lal Biswa Nath Bah Deo

v. Mahiuddin('), except that the lands do not appear to have been raiyati lands.

In holding that the mortgagor was not entitled to possession, Guba, J. observed that the mortgage deed did not stand in the way of the tenants being settled by the mortgagee, and that when they were so settled, they had well defined rights under the Act, and could not be ejected.

If section 5(3) of the Act did not apply-and it would not, unless the letting was by the proprietor or tenureholder-it is not stated what other provision of law operated to confer occupancy rights on the tenant.

The learned Judge then referred to Binad Lal Pakrashi

v. Kalu Pramanik(") as furnishing the principle on which the decision should rest. There, a tenant was put into possession by a person who claimed to be the proprietor, and though it subsequently turned out that he was not, it was held that the letting by him conferred on the tenant the status of a raiyat. As pointed out in Peary Mohun Mondal v. Ralhika Mohun

Hazra(~) and Krishna Nath Ohakrabarty v. Mahomed Wafiz('), the basis of the decision in Binad Lal Pakrashi v. Kalu Pramanik(") was that the word "proprietor" in section 5(3) would include a de facto as well as a de jure proprietor, and a tenant who is bona fide inducted into possession by him would have the status of a raiyat. This decision makes an inroad on the general. principle that no one can confer a better right than what he has got, and later decisions have generally shown a disposition to confine its application within narrow limits. But even on its own ground, it can have no application when the person who admits a tenant is not, as required by section 5(3), a proprietor de facto or de jure, but a mortgagee.

The principle of the decision in Binad Lal Pakrashi v.

Kalu Pramanik(2) does not therefore support the conclusion in Rajendra Nath v. Dinu Pradhan(') that a tenant admitted by a mortgagee into possession acquires the status of a raiyat.

(1) [1926] 97 LC. 852.

(2) [1898] LL.R. 20 Cal. 708.

(8) [1908] B O.W.N. 815.

(4) [1916] 21 C.W.N. 98.

(5) A.LR. 1980 Cal. 788.

~ .. \\ .

In Pramatha Nath v. Sashi Bhusan(1), a permanent 7956 lease was granted by a mortgagee after he had ob- H .h P ,, .

S b l h ari ar rasa .. tamed a decree for foreclosure.

U sequent y, t at Singh a"d another decree was recalled in a suit by the Official Receiver v. representing one of the mortgagors and a fresh decree Must. of Munshi for redemption was passed.

After redemption, the Nath Prasad Official Receiver received rent from the lessee treat- and others ing him as a tenant on the land. A transferee from Venkaturama the Official Receiver having subsequently instituted Ayyar J. a suit in ejectment against the tenant, it was held that the latter had acquired a right of occupancy under section 21 of the Act, and that the relief for khas possession could not be granted as against him.

Notwithstanding that some of the observations in the judgment are widely expressed, the ground of the decision really is that when the Official Receiver accepted rent from the tenant, that amounted to an affirmance of the lease by him, and that would have the effect of bringing section 5(3) directly into play and conferring on the tenant the status of a raiyat.

The decisions discussed above do not lay down any acceptable principle that a lease by a mortgagee which is protected by section 76(a) of the Transfer of Property Act, operates by itself to confer a right of occupancy on the tenant under section 21 of the Act.

Some argument was founded by the respondents on the clause in Exhibits 2 and 3 that the mortgagee could get the lands cultivated. It was contended that this clause conferred authority bn the mortgagee to settle raiyats on the lands, and that the tenants admitted in pursuance of this authority would be in the same position as if they had been admitted by the proprietor and the conditions of section 5(3) would be satisfied. But then, the lands are private lands, and the clause in question is followed by the provision that on redemption the mortgagors would be entitled to resume "sir and khas possession", and that would be rendered nugatory if the deed is construed as authorising the mortgagees to settle tenants on the lands with the status of raiyats.

The authority to get lands cultivated can only mean

(1) A.I.R. 1937 Cal. 763.

1956 getting them. cultivated through hired labour as conn 'h

P1' 4 templated in the definition of 'private lands'. We are

Sin~~ a":<I a=he• clearly of opinion that the mortgage deed conferred v. no authority on the mortgagees to admit tenants so Musi .• of Munshi as to confer on them rights of occupancy.

Nath P,.asad In the result, we must hold that the defendants of and other. the .second party have failed to establish that they

Venkatarama have any rights of occupancy over the suit lands, and Ayyar 1. that the plaintiffs are accordingly entitled to a decree in ejectment, with future mesne profits as claimed in the plaint. This appeal is allowed, the decree of the lower court is set aside, a'nd that of the Subordinate Judge of Monghyr restored as against 2nd party defendants with costs throughout.

The suit as agairist the first party defendants is dismissed, but in the circumstances, there will be no order as to costs.

January 17

THE STATE OF BOMBAY

R. S. NANJI.

[S. R. DAS, ACTING c. J., BHAGWATI, JAGANNADHA-

DAS, B. P. SINHA AND JAFER !MAM JJ.)

Bombay' Land Requisition Act, 1948 (BomblJ.y Act XXXIII of 1948), s. 6 (1)-Reguisition of premises by Bombay Government for housing an officer of State Road Transport Corporation-Whether for a public purpose-1/xpression

1p'llblic purpose'-Meaninq of-Road Transpo1't Corporation Act, 1950 (Parliament Act LXIV of 1950), s. 19( 1)( c)-Corporation empowered to provide living aooommodation for its employees-Premises requisitioned for Corporation-Whether for a public purpose.

In exercise of the powers conferred by sub-section (1) of s. 5 of the Bombay Land Requisition Act, 1948 the Government of Bom bay requisitioned by an order dated 12th May 1952, the premises specified therein, fore. public purpose, namely, for housing an otlicer of the State Road Tiansport Corporation which is a public utility service. On a writ application under Art. 226 of the Constitution filed by the respondent the requisition order was set asiae by the Bombay High Court on the ground that the requisition was not for a public purpose and therefore oould not have been made unaer s. 5 of the Requisition Aot.

On appeal by apecial leave to the Supreme Court.

HARIHAR PRASAD SINGH AND ANOTHER

MUST. OF MUNSHI NATH PRASAD

AND OTHERS

VIVIAN BosE

Mode of proof-Bihar Tenancy Act

ss. 5(3), 21, 108

Transfer of Property Act

s. 7C(a)

s. 83

Transfer of Property Act

ss. 103

s. 103

s. 103

Harihar Prasad Singh

s. 120

L.R. 53 I.A. 164

s. 5(3)

s. 21

s. 76

Transfer of Property Act

s. 90

L.R. 62 I.A. 180

P. K. Chatterjee

Harihar Prasad Singh

Taraehand Brijmohanlal

Barneshwar Prasad

Mauza Chowki

Khiran Rai

Firangi Rai

Babunath Prasad

Babu Misri Lal

Rameshwar Prasad Singh

section 83

Transfer of Property Act

Subordinate Judge, Monghyr

Ayyar

Subordinate Judge of Monghyr

27th May 1905

High Court of Patna

n Singh

Nath Prasad

Venkatarama Misra

Tarachand Brijmohan Lal

Section 120(2)

Tenancy Act VIII of 1885

section 103

section 103

Harbans Narain Singh

10th April, 1893

section 116

section 116

section 13

Ch ho tu Singh

Babu Nath Prasad

Munshi Babu Misri Lal

kabuliat Ayyar

sections 120(2) and 103

section 120

Section 120

Venkatarama

of Mumhi   * Nath Prasad

and others

(3) If any question arises in a Civil Court as to

Venkatarama

A:; yar J. whether land is or is not a proprietor's private land, the Court shall have regard to the rules laid down in this section for the guidance of Revenue Officers".

section 120

section 120

section 120(1)

section 103

section 103

Chulai Mahto

section 90

section 90

Munshi

section 21

section 103

section 103

section 103

section 103

section 120(2)

section 103

section 103

section 120(2)

section 116

Section 116

sections 106 and 116

Transfer of Property Act

section 116

Section 21

Section 20

Section 5(2)

section 5(8)

section 21

sections 6(2) and 6(8)

section 5(8)

section

21

section 58

Transfer of Property Act

section 5(3)

Section 3(2)

section 21

section 5(3)

section 5(3)

Section 5(1)

sections 5(2) and 5(3)

section 21

section 76

Transfer of Property Act

section 21

Section 76(a)

section 76(a)

Transfer of Property Act

Transfer of Property Act

Singh

Bihar Tenancy Act

sections 5(2) and 5(3)

section 76(a)

Transfer of Property Act

Hariha' PrasatJ.

Singh

Venkatarama

Guba

section 5(3)

section 5(3)

section 5(3)

Venkaturama

section 21

section 5(3)

section 76(a)

Transfer of Property Act

section 21

section 5(3)

Nath P,.asad

STATE OF BOMBAY

R. S. NANJI

S. R. DAS

BHAGWATI

JAGANNADHA-

B. P. SINHA

JAFER !MAM

Land Requisition Act, 1948

s. 6

Corporation Act, 1950

Parliament Act LXIV of 1950

s. 19( 1)( c)

s. 5

Bombay Land Requisition Act, 1948

Government of Bom bay

Art. 226

Bombay High Court

s. 5

Supreme Court