VANGAVETI NARAYANA AND ANR. Vs. MADAR KHAN

JUDGEMENT

(1.) BOTH these arise out of the same case, C. C. No. 13 of 1942 on the file of the Sub -Magistrate of Jaggayapeta. The charge against the petitioners who were accused 1 and 2 in the case was that they committed criminal trespass over 62 acres and 57 cents of land in S. No. 26 in T. D. No. 232 in Siripuram village in the possession of the zamindar of Munagala on 26th July 1941 at about 7 A. M. When the complainant, an estate servant, obstructed the accused from ploughing the land, they threatened to cause personal injuries if he interfered. They were charged with offences punishable under Sections 352 and 447; but they were acquitted in respect of the offence punishable under Section 352 and convicted only for criminal trespass. The matter was taken in appeal to the Sub -Divisional Magistrate of Bezwada who confirmed the conviction and sentence. On 16th October 1942, the Sub -Magistrate of Jaggayapeta passed an order directing the delivery of land trespassed to the zamindar of Munagala. During the pendency of the appeal, the proceedings were stayed and after the appeal was disposed of and the stay was vacated, an order was passed on 7th April 1943 directing the delivery of possession of the lands as per the original order. Crl. R.C. No. 443 of 1943 is against the order of the appellate Magistrate confirming the conviction and sentence while Crl. R.C. No. 722 of 1943 is for revising the order of the Sub -Magistrate dated 7th April 1943 directing the delivery of possession of lands to the zamindar.

(2.) THE property in dispute measuring 62 acres and 57 cents in extent was the subject -matter of a litigation between the Government, an inamdar and the zamindar of Munagala. At the time of the survey, the entire survey field No. 26 measuring 73 acres 18 cents was surveyed as if it was an inam land, but the registered extent of the inam was only 10 acres 61 cents. So the suit was filed for the establishment of the zamindar's rights both in the melwaram and kudiwaram in the 62 acres 57 cents excluding the ten acres 61 cents which alone was inam and for recovery of possession of the same. There was also an alternative prayer that in case the defendants should be considered to have acquired a kudiwaram right in the land, for the establishment of the plaintiff's melwaram right and for an injunction restraining the defendants from interfering with the said melwaram right of the plaintiff. The Government represented by the Secretary of State for India in Council was defendant 1 in the suit. There were five other defendants. The suit was decreed in respect of both the melwaram and kudiva -ram rights and a decree in ejectment in respect of 62 acres 57 cents was passed; vide Ex. A. That was on 8th May 1935. Proceedings in execution were taken and the property was delivered through Court to the zamindar on 15th June 1939; vide Ex. O. On that date, the amin went to the village, marked off the 62 acres 57 cents as shown in a plan attached to the delivery receipt and delivered possession of that land to the agent of the zamindar after removing it from the possession of the defendants. The prosecution case was that after that the land was lying fallow. There were disputes between the ryots and the zamindar. The ryots' association wanted the ryots to take possession of the lands which were not actually occupied by the zamindar. In pursuance of this programme of the association in dispute these lands were taken possession of by the accused on 26th July 1941. There were originally seven accused in this case. Of them accused 1 and 2 are brothers and were the active members of the ryots' association. The other accused were their farm servants. They were acquitted and accused 1 and 2 alone were convicted and sentenced as stated above. P.W. 1, an estate clerk and P.W. 6 who took possession of the land on behalf of the estate were examined to prove that the zamindar of Munagala obtained a decree and also possession of the property in dispute through Court. P. W .2, the kotwal of Siripuram village and a servant of the zamindar, was the complainant and he stated that when he found the accused attempting to plough the land he obstructed them. He was necked out by accused 3 at the instigation of accused 1 and the others abused him in foul language. He reported the matter to the estate authorities and again went to the land with some others. He found the accused actually ploughing it. They refused to heed their words when they were asked to give up ploughing the land and get away. The Village Munsif, P.W. 3 and P.W. 4 who went with P.W. 2, corroborated his version. The accused's version was that they have been in possession of the land prior to the date of offence and denied the trespass. They attempted to show that the, entire 73 acres 18 cents had belonged to the inamdar in various shares. The first accused's case was that he purchased the share of one Krishnamacharyulu under Ex. 8 and that even prior to the same he was in possession as a lessee. Both the Courts found that the alleged prior possession of the accused was not true and they committed trespass into the land and found them guilty of trespass.

(3.) IT is next urged that P.W. 2 in cross -examination stated that a major portion of the land was ploughed when he went near the field. From this it was sought to be inferred that it would not have been possible to have ploughed a major portion of the 62 acres odd on the morning of the date of occurrence itself. But then it was elicited in re -examination that the accused ploughed about 4 acres and if in cross -examination by a major portion of land was meant the 4 acres that was ploughed it must have been possible to plough a major portion of the 4 acres on the morning of the date of occurrence as the evidence itself was to the effect that it was not one team but three teams that entered the land to plough.