Lallan Singh &amp; Others Vs. State of Bihar
any receipts showing payment of the rent to the alleged tenure holders, but it may be that no receipts was granted for Batai rent. The High Courts regarding this observed :"It is said that no receipt was granted for the Batai rent. But the rent suit of 1919 gave on opportunity to Ramcharitar to contest the same, pleading at least payment of Batai rent and this plea would have shown that he continued to be raiyat in possession of the land of khata No. 188. Ramcharitar, however, did not do so further he said that he had given up and surrendered the land of Khata No. 188 after 1911".12. It seems to us that the High Court again relied on Ext. 17 treating it as a genuine document which the High Court, in view of our decision, was not entitled to do.13. The next document is document Ext. O/s. produced by the defence, which is said to be canal parcha of 1956-57 in respect of plot No. 1203. The High Court disregarded it by saying :"But one half of this document is torn and there is no initial of any officer to show that it is a genuine document".14. Then we come to 1960-61. Here the defence has produced a receipt, Ext. P, for Khata No. 158 granted on behalf of the State. It appears that Lallan Singh made a tenaja on July 13, 1960, claiming possession over the plots of Khata No. 158. The prosecution side objected to this claim but the Kanungo decided on August 8, 1960, that Lallan Singh was in possession of the old Khata No. 158, vide Ext. M/s. It appears that Lallan Singh produced canal parcha before the Kanungo because he observed :"1st party produced canal parcha for S. P. No. 1203 for 1944 only, while the 2nd party produces canal parcha also and comes on the basis of the entries made in the last survey Record of Rights. Hence vide my order in dispute No. 63 I held that Khata may be opened in the name of Lallan Singh, Surinder Singh and for Khasra No. 1760 and 1762".In this order regarded dispute No. 63 he had disbelieved the evidence of Bengali Ahir. It is true, as remarked by the High Court, that his order was passed at the Khanapuri stage of the survey and settlement proceedings and there could be no presumption of correctness attached to the same. But it does show that the appellants were disputing the possession of the prosecution as long ago as in 1960.15. Again by order dated December 10, 1960, Ext. H/c, the application of Lallan Singh under Section 40 of the Bihar Tenancy Act praying to commute the rent from kind into cash of Khata No. 158 plot Nos. 1203, 1206 and 1207 was decided in his favour. The officer held that the applicant was in possession. An appeal was filed against this order. In appeal the Deputy Collector observed :"According to entry in Khatian the land of Khata No. 158 is recorded in the name of Ramjas Rai and Ramcharitar Rai sons of Gauri Dayal Rai and Smt. Rekhawatia wife of Ramjatan Rai and of village Rahathus, this is again recorded as Batai Nisf.......... The respondents claim is simple and more convincing so far as the entries in Khatians are concerned. They are the accepted raiyats since the last settlement and so the commutation proceedings were rightly started. As against this clear position the appellant come forth with the story that all these respondents surrendered their land to him and as being the exlandlord he kept the land as his Bakasi and so prayed for fixation of rent under Sections 5, 6 and 7. But peculiarly enough this is simply the verbal gesture of the appellant. He is not coming forth with any papers which can slightly indicate that these raiyats have surrender their holdings to the appellant. It is also unconvincing that all the there raiyat could have surrendered the land to him; generally the lands are being surrendered due to burden of excessive rent, unproductivity of land or unprofitability or some time when the raiyats wants to shift to another place under certain pressing conditions. But none of the conditions have been brought to the notice of this Court by the appellant; rather I find that the successors interest are vehemently contesting the case on the ground of possession and title. The simple story of voluntary surrender is obviously not true because it might have been applicable to one case but not in all these three cases..... Whereas the Karamchari and Circle Inspector have found the respondents in possession of the land besides the local inquiry in favour of the respondents by the Anchal Adhikari himself. Thus the respondents are equipped with the right, title and possession which seems to have not been disturbed."The Deputy Collector, held in respect of Khata No. 158 that "the right, title and possession did not accrue to the appellant in respect of the land".16. On this documentary evidence it seems to us that the prosecution has not proved that the prosecution party was in possession of Khata No. 158 at the time of the occurrence. It is remarkable that the prosecution party did not get the record of rights amended if their story of surrender of the land by Ramcharitar in 1919 were true. We cannot understand how some canal parchas came to be issued in the name of the appellants in respect of this Khata if the prosecution side was in possession. We are impressed by the reasoning of the Deputy Collector that in the circumstance the story of surrender is unacceptable. If this is unacceptable the whole edifice erected on it falls to the ground.17. The learned counsel for the State says that there is oral evidence to show that the prosecution was in possession of this Khata but, in our opinion, in such matters oral evidence cannot override the inference available from the documentary evidence.
0[ds]6. It seems to us that there is force in the contentions of the learned counsel. Ext. 2 was clearly misread by the Highis admitted before us that there is no other proof regarding Ext. 17. In view of the ruling of this Court there is no presumption regarding the genuineness of Ext. 17 and the High Court was wrong in treating it as genuine on the ground that it was more than 30 years old document.17. The learned counsel for the State says that there is oral evidence to show that the prosecution was in possession of this Khatabut, in our opinion, in such matters oral evidence cannot override the inference available from the documentary evidence.11. The next document we have on the record is some rent receipts filed on behalf of the prosecution for 1341 to 1361 Fasli granted by the Dwaraon Raj, but these receipts may well be in respect of the amounts given as tenure holders. Further these receipts are in respect of Khewat No. 2 and no Khata number is mentioned therein. It is true that the appellants have not also produced any receipts showing payment of the rent to the alleged tenure holders, but it may be that no receipts was granted for Batai rent.The next document we have on the record is some rent receipts filed on behalf of the prosecution for 1341 to 1361 Fasli granted by the Dwaraon Raj, but these receipts may well be in respect of the amounts given as tenure holders. Further these receipts are in respect of Khewat No. 2 and no Khata number is mentioned therein. It is true that the appellants have not also produced any receipts showing payment of the rent to the alleged tenure holders, but it may be that no receipts was granted for Batai. Again by order dated December 10, 1960, Ext. H/c, the application of Lallan Singh under Section 40 of the Bihar Tenancy Act praying to commute the rent from kind into cash of Khata No. 158 plot Nos. 1203, 1206 and 1207 was decided in his favour. The officer held that the applicant was in possession. An appeal was filed against this order
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any receipts showing payment of the rent to the alleged tenure holders, but it may be that no receipts was granted for Batai rent. The High Courts regarding this observed :"It is said that no receipt was granted for the Batai rent. But the rent suit of 1919 gave on opportunity to Ramcharitar to contest the same, pleading at least payment of Batai rent and this plea would have shown that he continued to be raiyat in possession of the land of khata No. 188. Ramcharitar, however, did not do so further he said that he had given up and surrendered the land of Khata No. 188 after 1911".12. It seems to us that the High Court again relied on Ext. 17 treating it as a genuine document which the High Court, in view of our decision, was not entitled to do.13. The next document is document Ext. O/s. produced by the defence, which is said to be canal parcha of 1956-57 in respect of plot No. 1203. The High Court disregarded it by saying :"But one half of this document is torn and there is no initial of any officer to show that it is a genuine document".14. Then we come to 1960-61. Here the defence has produced a receipt, Ext. P, for Khata No. 158 granted on behalf of the State. It appears that Lallan Singh made a tenaja on July 13, 1960, claiming possession over the plots of Khata No. 158. The prosecution side objected to this claim but the Kanungo decided on August 8, 1960, that Lallan Singh was in possession of the old Khata No. 158, vide Ext. M/s. It appears that Lallan Singh produced canal parcha before the Kanungo because he observed :"1st party produced canal parcha for S. P. No. 1203 for 1944 only, while the 2nd party produces canal parcha also and comes on the basis of the entries made in the last survey Record of Rights. Hence vide my order in dispute No. 63 I held that Khata may be opened in the name of Lallan Singh, Surinder Singh and for Khasra No. 1760 and 1762".In this order regarded dispute No. 63 he had disbelieved the evidence of Bengali Ahir. It is true, as remarked by the High Court, that his order was passed at the Khanapuri stage of the survey and settlement proceedings and there could be no presumption of correctness attached to the same. But it does show that the appellants were disputing the possession of the prosecution as long ago as in 1960.15. Again by order dated December 10, 1960, Ext. H/c, the application of Lallan Singh under Section 40 of the Bihar Tenancy Act praying to commute the rent from kind into cash of Khata No. 158 plot Nos. 1203, 1206 and 1207 was decided in his favour. The officer held that the applicant was in possession. An appeal was filed against this order. In appeal the Deputy Collector observed :"According to entry in Khatian the land of Khata No. 158 is recorded in the name of Ramjas Rai and Ramcharitar Rai sons of Gauri Dayal Rai and Smt. Rekhawatia wife of Ramjatan Rai and of village Rahathus, this is again recorded as Batai Nisf.......... The respondents claim is simple and more convincing so far as the entries in Khatians are concerned. They are the accepted raiyats since the last settlement and so the commutation proceedings were rightly started. As against this clear position the appellant come forth with the story that all these respondents surrendered their land to him and as being the exlandlord he kept the land as his Bakasi and so prayed for fixation of rent under Sections 5, 6 and 7. But peculiarly enough this is simply the verbal gesture of the appellant. He is not coming forth with any papers which can slightly indicate that these raiyats have surrender their holdings to the appellant. It is also unconvincing that all the there raiyat could have surrendered the land to him; generally the lands are being surrendered due to burden of excessive rent, unproductivity of land or unprofitability or some time when the raiyats wants to shift to another place under certain pressing conditions. But none of the conditions have been brought to the notice of this Court by the appellant; rather I find that the successors interest are vehemently contesting the case on the ground of possession and title. The simple story of voluntary surrender is obviously not true because it might have been applicable to one case but not in all these three cases..... Whereas the Karamchari and Circle Inspector have found the respondents in possession of the land besides the local inquiry in favour of the respondents by the Anchal Adhikari himself. Thus the respondents are equipped with the right, title and possession which seems to have not been disturbed."The Deputy Collector, held in respect of Khata No. 158 that "the right, title and possession did not accrue to the appellant in respect of the land".16. On this documentary evidence it seems to us that the prosecution has not proved that the prosecution party was in possession of Khata No. 158 at the time of the occurrence. It is remarkable that the prosecution party did not get the record of rights amended if their story of surrender of the land by Ramcharitar in 1919 were true. We cannot understand how some canal parchas came to be issued in the name of the appellants in respect of this Khata if the prosecution side was in possession. We are impressed by the reasoning of the Deputy Collector that in the circumstance the story of surrender is unacceptable. If this is unacceptable the whole edifice erected on it falls to the ground.17. The learned counsel for the State says that there is oral evidence to show that the prosecution was in possession of this Khata but, in our opinion, in such matters oral evidence cannot override the inference available from the documentary evidence.

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6. It seems to us that there is force in the contentions of the learned counsel. Ext. 2 was clearly misread by the Highis admitted before us that there is no other proof regarding Ext. 17. In view of the ruling of this Court there is no presumption regarding the genuineness of Ext. 17 and the High Court was wrong in treating it as genuine on the ground that it was more than 30 years old document.17. The learned counsel for the State says that there is oral evidence to show that the prosecution was in possession of this Khatabut, in our opinion, in such matters oral evidence cannot override the inference available from the documentary evidence.11. The next document we have on the record is some rent receipts filed on behalf of the prosecution for 1341 to 1361 Fasli granted by the Dwaraon Raj, but these receipts may well be in respect of the amounts given as tenure holders. Further these receipts are in respect of Khewat No. 2 and no Khata number is mentioned therein. It is true that the appellants have not also produced any receipts showing payment of the rent to the alleged tenure holders, but it may be that no receipts was granted for Batai rent.The next document we have on the record is some rent receipts filed on behalf of the prosecution for 1341 to 1361 Fasli granted by the Dwaraon Raj, but these receipts may well be in respect of the amounts given as tenure holders. Further these receipts are in respect of Khewat No. 2 and no Khata number is mentioned therein. It is true that the appellants have not also produced any receipts showing payment of the rent to the alleged tenure holders, but it may be that no receipts was granted for Batai. Again by order dated December 10, 1960, Ext. H/c, the application of Lallan Singh under Section 40 of the Bihar Tenancy Act praying to commute the rent from kind into cash of Khata No. 158 plot Nos. 1203, 1206 and 1207 was decided in his favour. The officer held that the applicant was in possession. An appeal was filed against this order
