S.M. SIKRI, J.
1. This appeal by special leave is directed against the judgment of the Patna High Court dismissing the appeal of the nine appellants before us. They had been convicted by the learned Sessions Judge under Section 325 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for three years each. They were also convicted under Section 147, Section 148 and Section 379 IPC. The appellants were also individually convicted for various offences which it is not necessary to mention.
2. In brief the prosecution case was that Anant Prasad Jaiswal, PW 2, Gupteshwar Nath Jaiswal, PW 4, and Baijnath Sahu, PW 9, had gone on the morning of March 23, 1962, with a number of labourers, for harvesting the Rabi crop of Plot No. 1203 of Khata No. 158. They harvested the crop till about 11.30 a.m. when the accused party turned up, with various other persons, variously armed. They attacked the members of the prosecution party, including Sheokaran Ahir who died. It was further alleged that most of the labourers succeeded in running away but a number of persons were chased and assaulted at three different plakhes.
3. The defence of the appellants was that the appellant, Lallan Singh, was in actual possession of Plot No. 1203 and that the prosecution party came in a mob to disposses him and actually started looting the crop grown by Lallan Singh and this resulted in the occurrence.
4. The Sessions Judge believed the prosecution case. On the question of possession the learned Sessions Judge went through the documents and the oral evidence and came to the conclusion that the prosecution party was in possession of Plot No. 1203. This finding was upheld by the High Court.
5. The learned counsel for the appellants contends that the finding on the question of possession is vitiated because Ext. 2, a canal parcha, had been misread, and secondly because the High Court has wrongly taken into consideration Ext. 17, a certified copy of the petition by Ram Charitar Rai, dated October 27, 1919, on the ground that it is more than 30 years old. He says that as held by this Court in Harihar Prasad Singh v. Mst of Munshi Nath Prasad1 there is no presumption of genuineness in favour of certified copies of documents under Section 90 of the Evidence Act.
6. It seems to us that there is force in the contentions of the learned counsel. Ext. 2 was clearly misread by the High Court. The High Court observed:
“On behalf of the prosecution a canal parcha for the Kharif crop of 1961-62 in respect of Plot No. 1203 of Khata No. 158 and two plots of Khata Nos. 157 and 149 was also produced. It is admitted that these plots of land are not irrigated by the canal on seven years' lease and they are irrigated occasionally.”
7. Ext. 2 is printed in the record and it does not mention Plot No. 1203 but instead it mentions Plot No. 1208. We first thought that it may be that there was a mistake in printing but PW 2 stated in his cross-examination thus:
“Plot No. 1203 is only sometimes irrigated by canal. It is not within SAT-SALA (seven years, lease). Ext. 2 does not relate to SAT-SALA lands. Plot No. 1203 is not mentioned in Ext. 2 the Canal Parcha. ... I can't say without looking at papers and searching for it, as to whether there are canal parchas in respect of Plot No. 1203 of Khata No. 158. We have not irrigated Plot No. 1203 by canal water during the last nine or ten years.”
It is clear from this evidence that Ext. 2 does not relate to Plot No. 1203.
8. The High Court has taken into consideration the certified copy of the petition, Ext. 17. The High Court says regarding Ext. 17:
“It appears that a petition (certified copy, of which is Ext. 17) was filed in the rent suit aforesaid by Ramcharitar Rai on 27th October, 1919. The certified copy of this compromise petition was issued on the 12th December, 1919. The record of the rent suit has been destroyed under the rules and, therefore, the original could not be called for. PW 9 produced these two more, more than 30 years old documents from his own custody.... On behalf of the appellant Lallan Singh it is said that it (Ext. 17) is not a genuine petition, but there is absolutely no reason to doubt the genuineness of this petition.”
It is 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.
9. In view of the above conclusions it is necessary for us to go into the question of possession.
10. According to the prosecution case Maharaja of Dumraon was the proprietor of this village in 1873 and Mahadeo Rux was the tenure holder under him. Mahadeo Rux purchased this village in an auction and became the direct cultivator of the area purchased. The first survey took plakhe in this village in the beginning of the 20th century and the records were finally published in the year 1911. Khata No. 158 consists of Plot Nos. 1203, 1206 and 1207. We are only concerned with Plot No. 1203. Khata No. 158 was recorded in the names of Ramjas, Ramcharitar (grandfather of Lallan Singh) and Mst Bikhwatia widow of Ramjatan Rai. These persons were recorded in the Khatian as Batsidars, and Narain Sahu, grandfather of PW 2 was recorded as tenure holder in Khewat No. 2 under Khata No. 1 of the Maharaja. The case of the prosecution further was that Narain Sahu instituted a suit in 1919 for rent against one Banka Ahir and several others in respect of 3.22 acres of land of Khata No. 158. The decree was passed on November 1, 1919, and the certified copy Ext. 18, shows that Ramcharitar Rai was a proforma defendant and the decree was passed ex parte. It is in connection with those proceedings that Ext. 17 was relied on. In Ext. 17 it is alleged to have been stated by Ramcharitar Rai as follows:
“In survey (records), the lands under Khata No. 158 at Mouza Adharpa, Thana No. 261 was recorded in the name of this defendant. But after survey operations this defendant, gave up the possession of the lands under the said Khata and surrendered the same from the year 1318 Fs. and delivered the possession to the plaintiff....”
But there is no mention of this in the decree. Ext. 18. The prosecution has not filed any surrender deed in these proceedings.
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 receipt was granted for Batai rent. The High Court regarding this observed:
“It is said that no receipt was granted for the Batai rent. But the rent suit of 1919 gave an 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 regarding Dispute No. 63 he had disbelieved the evidence of Bengali Ahir. It is true, as remarked by the High Court, that this order was passed at the Khanapuri stage of the survey and settlement proceedings and there could be no presumption of correctness attached to the 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 Mst Rekhawatia wife of Ramjatan Rai and of Village Rahathus, this is again recorded as Batai Nisf.... The respondent's claim is simple and more convincing as 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 surrendered their holdings to the appellant. It is also unconvincing that all the three raiyats could have surrendered the land to him; generally the lands are being surrendered due to burden of excessive rent, unproductivity of the land or unprofitability or some time when the raiyats want to shift to another plakhe 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 vehmently 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 circumstances 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.
18. In view of our finding that it has not been established that the prosecution party was in possession of Plot No. 1203, the prosecution case must fail. In the result the appeal is allowed and the appellants acquitted.