SUBBA RAO, J.: - (1.) THE following Judgment of the court was delivered by
(2.) THESE six appeals, by special leave werefiled against the judgment of the Board of Revenue dated 28/07/1954. The respondent was a Zamindar of Gadhi, Baghu and Santokpore Villages in Uttar Pradesh. He claimed that the plaint- schedule lands were his Sir. The appellants set up a dispute claiming that they were admitted by the respondent as hereditary tenants and that they were in possession of the said lands. As the dispute was likely to cause breach of the peace, the Sub-Divisional Magistrate, Baghpat, took proceedings under s. 145, Code of Criminal Procedure, and attached the disputed lands on 8/10/1948, and directed them to be placed in possession of a superdgidar pending disposal of those proceedings. After making the necessary enquiry, by an order dated 20/03/1950, he found that the appellants were in possession of the said lands and declared that they were entitled to be in possession thereof until evicted therefrom in due course of law. On 30/06/1950, the respondent filed six suits in the Revenue court (Additional Collector, Meerut) against the appellants under s. 180 of the U. P. Tenancy Act (U. P. 17 of 1939), hereinafter called the Act, for evicting them from -the said lands and for damages. He alleged therein that the disputed lands were his Sir lands and that the appellants trespassed on the same on the basis of a wrong order of the Criminal court. The appellants pleaded, inter alia, that they had been admitted as hereditary tenants by the respondent after receiving from them a sum of Rs. 40,000.00 towards premium. The suits were consolidated, but were stayed on 14/08/1951, under r. 4 of the Rules made under the U. P. Ordinance No. III of 1951. On 22/09/1952, on an application made by the respondent, the Revenue court ordered under r. 5 for restarting the trial of the suits. After the said order, the Revenue court transferred the suits to the Civil court for retrial, but the first Additional Munsif, Ghaziabad, to whom the suits were transferred, held that the said suits were triable only by the Revenue court and retransferred the same to that court. The Additional Collector, Meerut, held, on evidence, that the said lands were Sir and Khud kasht of the respondent and that the appellants were not admitted thereto as hereditary tenants. The appellants preferred six appeals against the decrees of the Additional Collector in the six suits to the court of the Commissioner at Meerut. The Additional Commissioner, who heard the appeals, held that one of the appeals filed by the legal representatives of Jahana, the plaintiff in the suit which gave rise to that appeal, had not been properly presented on the ground that Shri Brahmanand Sharma, Vakil, did not file in the suit any vakalat given to him by the legal representatives of the deceased and therefore the appeal had abated, and that as all the suits were consolidated with the consent of the parties, the decision in the suit became final and operated as res judicata in the other appeals. On the merits, he agreed with the trial court in holding that the lands in dispute were Sir and that the appellants were not hereditary tenants. Thereafter, the appellants preferred six second appeals against the said order of the Additional Commissioner to the Board of Revenue at Allahabad. The Board of Revenue accepted the findings of the two courts, and also it negatived the plea raised by the appellants for the first time to the effect that the suits were not maintainable in the Revenue court. In the result, the appeals were dismissed. The present appeals were filed against the order of the Board of Revenue. The learned Counsel for the appellants raised before us the following contentions: (1) The appeal by the legal representatives of Jahana against the order of the Additional Collector, Meerut, was properly presented to the court of the Commissioner; (2) assuming that the said appeal had abated, the decision of the Additional Collector in the suit giving rise to the said appeal would not operate as res judicata in the connected appeals; (3) the Revenue court had no jurisdiction to try the suits ; (4) as the suits had been stayed under r. 4 of the Rules made under the U. P. Zamindari Abolition and Land Reforms Act, 1950, hereinafter called the Rules, they had abated under r. 5 of 'the said Rules; (5) the finding on issue one, namely, that the appellants were not hereditary tenants, was vitiated by errors of law ; and (6) the finding on issue two, namely, to what damages, if any, was the plaintiff entitled was contrary to law inasmuch as the Additional Collector gave damages though neither the witnesses deposed to it nor the Advocate advanced any argument thereon. The first two contentions need not detain us. As we are rejecting the contentions of the learned Counsel for the appellants on all the other points, the correctness of the decision of the Revenue Board on the said two points would not affect the result of the appeals. We do not, therefore, propose to express our opinion thereon.
(3.) WE shall take the fifth contention next. That contention raises the question whether the appellants were hereditary tenants of the disputed lands. The three courts have concurrently held on a consideration of oral and documentary evidence that they were not hereditary tenants. The learned Counsel for the appellants made an attempt to reopen the said finding by contending that it was vitiated by the following errors of law: (i) Though the appellants filed a certified copy of the khatauni of 1355 fasli, the courts did not draw the presumption, which they were bound to do, to the effect that the said certified copy was a genuine document and that the person who purported to have signed it had held the official character which he claimed to hold in the said document; (ii) as the Magistrate made an order in favour of the appellants under s. 145 of the Code of Criminal Procedure, the courts should have thrown the burden of proof on the respondent; (iii) the material evidence adduced on the side of the appellants was ignored; (iv) the courts applied different standards of proof to the appellants and the respondent in regard to the certified copies of khatauni and khasra prepared by the same patwari, Ahmed Ali; and (v) the courts also ignored the rights accrued to the appellants and ss: 10, 16 and 20 of the U. P. Tenancy Act. For convenience of reference and to distinguish the alleged errors of law from the main contentions, we shall refer to the former as points. The first point, in the manner presented before us, does not appear to have been raised in any of the three courts. Section 79 of the Evidence Act reads: ` The court shall presume to be genuine every document purporting to be a certificate.......... which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer -of the central government or of a State government................................................ Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper `. Under this section a court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. But such a presumption is permissible only if the, certified copy is substantially in the form and purported to be executed in the manner provided by law in that behalf. Section 4 of the Evidence Act indi- cates the limits of such a presumption. The relevant part of that section reads: ` Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved `. To put it differently, if a certified copy was executed substantially in the form and in the manner provided by law, the court raises a rebuttable presumption in regard to its genuineness. The khatauni of 1355 fasli with which we are concerned, gives the relevant details and purports to have been signed by Ahmed Ali, the patwari of the village. It cannot be disputed that the patwari was an officer appointed by the State government and that he was authorized to issue certified copies of the record of rights. The U. P. Land Records Manual gives the rules prescribing the form and the manner in which a certified. copy of the record of rights should be issued. Paragraph 26 of the Manual confers upon him the power to give to the applicants certified copies from his record; and tinder el. (d) of the said paragraph he should enter in his diary a note of such extracts. He should also note the amount of fee realised by him in the diary as well as on the extract. In this case neither the diary was produced to prove that the procedure prescribed was followed nor the extract to disclose that the officer made any note of payment. It cannot, therefore, be said that the certified copy was issued by the patwari in substantial compliance with the provisions of law governing such issue. If so, it follows that the court is not bound to draw the presumption in regard to its genuineness. That apart, a court is bound to draw only a rebuttable presumption in regard to its genuineness. In this case the three courts rejected the document on the ground that it was not genuine on the basis of not only the internal evidence furnished by the document but also on other evidence. They have given convincing reasons for doing so, and even if there was any rebuttable presumption, it was rebutted in the present case. ;