BHINKA AND OTHERS versus CHARAN SINGH

Citation: [1959] SUPP. 2 S.C.R. 798 · Decided: 24-04-1959 · Supreme Court of India · Bench: S.K. DAS · Disposal: Dismissed
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Judgment (excerpt)

Apri! 24 
798 
SUPitEME COUHT ItEPOHTS [1959] Supp. 
BHINKA AND OTHEitS 
v. 
CHAHAN SINGH 
(S. K. DAS, A. K. SARKAR and K. SuBBA HAo, JJ.) 
Agricultural Tenancy-Jurisdiction of Revenue Court-Suit 
for eject1ncnt of person in occupation without title-Provisional order 
of Magistrate regarding possession, if a proper defence-U. P. 
Tenancy Act, I939 (U. P. 17 of Ig39), s. I8o-Code of Criminal 
Procedure (V of I898), s. I45· 
These appeals arose out of suits for ejectment instituted in 
the I<.evenue Court by the respondent Zamindar against the 
appellants under s. 180 cif the U. P. Tenancy Act, 1939 (U. P. 17 
of 1939). 
His case was that the lands in suit were his sir lands 
and the appellants trespassed on the same on the basis of a 
wrong order of the Criminal Court. The case of the appellants 
was that they were admitted as hereditary tenants by the respon-
dents. There was a previous proceeding under s. 145 of the Code 
of Criminal Procedure between the parties and the Magistrate 
found. possession with the appellants and directed that they 
should remain in possession till evicted by due process of law. 
The Revenue Court which tried the suits found that the lands 
were sir lands of the respondent and the appellants were not 
hereditary tenants and did not take possession with the consent 
of the respondent. The Additional Commissioner on appeal and 
the Boa.rd of Revenue on second appeal, agreed with these find-
ings of the Revenue Court and dismissed the appeals. The 
Board negatived the plea of the appellants that the suits were 
not triable by the Revenue Court. Section r8o of the U. P. 
Tenancy Act, 1939, provides that a person taking or retaining 
possession of land without the consent of the person entitled to 
admit him into occupation and otherwise than in accordance 
with the provisions of law for the time being in force will be 
liable to ejectment thereunder. In view of the finding of the courts 
below that the appellants had not taken possession with the con-
sent of the respondent, the question was whether they did so by 
virtue ol s. r45 of the Code of Criminal Procedure. 
Held, that the provisions of s. r45 of the Code of Criminal 
Procedure authorised the Magistrate only to declare the actual 
possession of a party on a specified date and not to give posses-
sion or permit any party to take possession. He had no power 
under that section to decide questions of title or right to posses-
-
sion \vhich a civil court a,Ione could decide. 
The words " taking " and " retaining " were used by s. 180 of 
the Act in an independent and exclusive sense. 'fhe former 
referred to taking of possession illegally and the latter to taking 
of possession legally but subsequent retaining of it illegally. 
Consequently, the appellants whose possession had been found 
(2) S.C.R. 
SUPREME COURT REPORTS 
799 
to be illegal from the very inception, could not be said to retain 
possession legally so as to be outside the scope of the section. 
It was also clear that possession in accordance with law, 
such as was contemplated by s. 180 of the Act, meant possession 
with lawful title. The provisional Order of the Magistrate with 
regard to possession, irrespective of lawful rights of the parties, 
could not, therefore, enable the appellants to resist the suit nuder 
s. 180 of the Act. 
Dinomoni Chowdhrani v. Barojo Mohini Chowdhrani, (1901) 
L.R. 29 I.A. 24, referred to. 
CIVIL 
APPELLATE JURISDICTION: 
Civil Appeals 
Nos. 78 to 83 of 1959. 
Appeals by special leave from the judgment and 
orders dated July 28, 1954, of the U. P. Board of 
Revenue in Second Appeals Nos. 430-435 of 1953-54, 
arising out of the judgment and orders dated April 28, 
1954, of the Court of the Additional Commissioner, 
Meerut Division, Meerut, in Appeals Nos. 455-460 of 
1954 against the judgment and orders dated March 16, 
1954, of the Addl. District Ma.gistrate, Meerut., in Cases 
Nos. 389-394 of 1950. 
B. 0. Misra, for the appellants. 
S. N. Andley, J. B. Dadachanji and Rameshwar 
Nath, for the respondent. 
1959. 
April 24. 
The Judgment of the Court was 
delivered by 
IfJ59 
Bhinka & Others 
v. 
Charan S-ingh 
SuBBA RAO, J.-These six appeals by special leave 
S11bba Rao J. 
were filed against the judgment of the Board of Reve-
nue dated July 28, 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
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