Chandran and Others vs Emperor

James, J.—A certain holding was for some years before 1913 in the possession of Sheikh Akhju as a non-occupancy riot.

In 1913 the holding was sold in execution of a decree for arrears of rent when it was purchased by one Sheikh Jhuman. The purchaser sublet the holding to Hulas and Bhana as bataidars, one of whom at least had been occupying the land before the sale as tenant of Sheikh Akhju. In September 1931, Jhuman executed a sale-deed by which he purported to transfer the land to one Sheikh Chandra for Rs. 700 and then Hulas and Bhana executed a kabuliyat in favour of Sheikh Chandan. Subsequently the bataidars served notice on Sheikh Chandan of their intention to abandon this land.

On 27th March 1932, a riot occurred in which the party of Sheikh Akhju was concerned on one side and that of Sheikh Chandan on the other. According to the findings of the Magistrate, Sheikh Akhju was ploughing the field with his two sons and two labourers, when Sheikh Chandan with a large party came to the place and turned him out by force. Sheikh Chandan''s party was charged with rioting with the common object of dispossession of Sheikh Akhju and his sons from the actual and physical possession of this land; and the petitioners have been convicted of this offence and fined each Rs. 50, being further bound down u/s 106, Criminal P.C., to keep the peace for one year.

The defence of the accused persons was that Sheikh Chandan was actually in possession of the land, of which Sheik Akhju had been dispossessed since the delivery of possession by the civil Court to Sheikh Jhuman on 14th April 1914. Sheikh Akhju says that Sheikh Jhuman had merely been his benamidar, and that the actual possession throughout remained with himself and this case was accepted by the trial Court.

Mr. Roy on behalf of the petitioners argues that the findings of the trial Court should be regarded as vitiated by the fact that no attention has been paid to evidence which afforded strong corroboration of Sheikh Jhuman''s statement that he had continuously been paying rent for this land. The learned Magistrate had observed that if it could be proved that Sheikh Jhuman was in actual possession of this land from 1914 until he transferred it to Sheikh Chandan in 1931 the accused persons, would certainly be entitled to acquittal; but he has come to the conclusion that Sheikh Jhuman never had any possession at all, failing according to Mr. Roy to give sufficient weight to the fact that the possession of the bataidars if they had held under Sheikh Jhuman was the possession of Sheikh Jhuman himself. Although the sale at which Sheikh Jhuman purchased was an execution of a decree obtained by the Maharaja of Chota Nagpur, the Maharaja never recognized him as his tenant, and the name of Sheikh Akhju remained recorded in the sherista.

This fact might possibly be treated as supporting the claim of Sheikh Akhju that he never gave up possession and it has indeed been so treated by the learned Magistrate. But Mr. Roy points out that Sheikh Jhuman has explained that although he applied for mutation, the landlord''s amals failed to make it and he therefore paid the rent by depositing it in the Government Treasury. (After discussing the evidence the judgment proceeded).

Mr. Roy argues that witnesses for the defence have thus, been treated unfairly and that the failure to take into consideration the fact that Sheikh Jhuman actually has been recognized by the landlord, and that it is he who has been paying rent of the holding should be treated as vitiating the findings of the learned Magistrate on the question of possession. Indeed when these facts are taken into consideration, it is difficult to see how the case that Sheikh Jhuman was a mere benamidar can be supported. Sheikh Akhju says that the money with which the purchase was made in 1914 was his own and that Sheikh Jhuman was merely a benamidar.

As Mr. Roy remarkss it is difficult to understand why if Sheikh Akhju could have paid off the amount due under the decree, he should have gone through the form of purchasing the holding in somebody else''s name and paying a sum for it in excess of the decretal amount; and indeed some weight must be given to Mr. Roy''s argument that if the learned Magistrate had taken also into consideration the fact that Jhuman paid the rent in 1927 and was recognized by the landlord, the improbability of the claim made by Sheikh Akhju would become apparent. I think that this contention must prevail. Sheikh Jhuman purchased the land at a Court sale and was placed into possession by the Court; and it is the duty of the criminal Court to protect the possession which has been given by the rent Court. That possession must be protected, whether it is what the learned Magistrate calls symbolical possession or whether it is what he called actual physical possession. Sheikh Jhuman never himself cultivated this land; but it appears to be clear that he settled it with bataidars and that is for the purpose of the present case exactly the same as if he had cultivated it himself. The transfer to Sheikh Chandan may be open to attack under the Chota Nagpur Tenancy Act, which prohibits the transfer by raiyats of their holdings; but that fact would not give any right of re-entry to Sheikh Akhju, whose rights were lost when the holding was brought to sale in 1913.

It appears to be clear that the learned Magistrate has misdirected himself by his failure to take into consideration the unimpeachable evidence which was adduced by Sheikh Jhuman, which showed that he had been as he claimed paying the rent of the holding and that his right to do so had been recognized by the landlord. If that evidence had been taken into consideration the learned Magistrate would not have disregarded the effect of the delivery of possession made in execution of the rent decree; and I consider that his finding and order must be set aside. The common object of the unlawful assembly as stated in the charge was to dispossess Sheikh Akhju who had been in possession but Sheikh Jhuman and after Sheikh Chandan, and therefore the cultivation cannot be supported.

The finding and order of the lower Court are therefore set aside and the fines if paid will be refunded.