BINAYAK SWAIN AND ORS. Vs. RAMESH CHANDRA PANIGRAHI

JUDGEMENT

(1.) PETITIONERS have been convicted under Section 379, Indian Penal Code and sentenced to simple imprisonment for one month each and to pay a fine of Rs. 50 each, in default to undergo, impale imprisonment for one month more. Petitioner No. 1 is the father of Petitioner No. 2. The rest of the Petitioners do not claim interest in the disputed lands. From the chart, supplied by Mr. G. Das, it would be apparent that there was a long standing dispute between the parties. The history of the litigation may be briefly stated: Magata Panigrahi, father of P.W. 1 brought Money Suit No. 500 41 in the Court of the Munsif, Aska, for recovery of Rs. 910 against Petitioner No. 1. The suit was dismissed on 17 -8 -1942. In Money appeal No. 178 41 the suit was decreed on 9 -3 -1943. On 19 -7 -1943 Second appeal No. 100 of 1943 was filed in the High Court, against the appellate decree. Some of the properties of the Petitioners 1 and 2 were purchased by the decree -holder (opposite party) for Rs. 16001 on 29 -10 -1945 in Execution Case No. 94 of 1945 in the Court of the Munsif, Askaann possession was delivered to the decree -holder pn 17 -5 -1.946. On 11 -11.1946 Second Appeal No. 100 of 1943 was allowed and the suit was remanded. Petitioner No. 1 filed an application for restitution on 15.2 -1947 in M.J.C. No. 34 of 1947 in the Court of the Munsif, Aska. On 29 -11 -1947 the suit was dismissed by the Munsif, Aska, after remand. On 29 -11 -1948 the suit was decreed by the Additional Subordinate Judge, Berhampur in the Miscellaneous Appeal No. 19 of 147 and the decree in favour of the Plaintiff was confirmed in Second Appeal No. 112 of 1949 on 27 -8 -1954. On 12.7 -1956 in M.J.C. No. 34 of 1947 restitution was ordered by the Munsif, Aska. On 25 -2 -1958 the application for restitution was dismissed by the Additional Subordinate Judge, Berhampur in Miscellaneous Appeal No. 3 of 1957. On 3 -10 -1958 P.V.B. Rao, J. directly restitution in Miscellaneous Second Appeal No. 24 of 1958 and possession was delivered to Petitioner No. in 1959. In A.H.O. No. 1 of 1959, the judgment of P.V.B. Rao, J. was set aside by a Division Bench of this Court consisting of S.P. Mohapatra, and J.K. Misra, JJ. On 3.1.1961 the application for restitution was dismissed. On 21 -1 -1961 and application for leave to appeal to Supreme Court was filed in S.C. A. No. 48 of 1961. In M.J.C. No. 101 of 1961 the Munsif of Aska redelivered possession to the decree -holder on 4.8 -1961. S.C.A. No. 48 of 1961 was dismissed on 26 -9 -1961 and leave to Supreme Court was refused. On 27 -11 -1961 an application for leave under Article 16 of the Constitution for special leave was filed before the Supreme Court. The Petitioners cut and removed the crop from the disputed lands on 10 -12 -1961 and 11 -12 -1961. On 22 -1 -1962 special leave was granted by the Supreme Court. The civil litigation between the parties is still pending in the Supreme Court in Civil Appeal No. 29 of 1962.

(2.) THE prosecution case is that by 4 -8 -1 61 when P.W. 1 got delivery of possession of the disputed lands through Court, there was crop on about one acre of land. After 4 -8 -1161 P.W. 1 transplanted paddy on the disputed lands and did all other agricultural operations till the dates of occurrence when crops were forcibly remove by the Petitioner 's. Petitioner No. 1 in his defence claimed that he continued in possession of the disputed lands by doing further agricultural operations despite delivery of possession on 4 -8 -1961 and he cut and removed the crop which he had grown. Petitioner No. 2 said that he had not come to the spot on the fates of occurrence and was working in Post Office where he was an employee. The rest of the Petitioners denied their having come to the spot and cut the paddy.

(3.) MR . Das next contended that even on the finding recorded by the Courts below, the petition 's are entitled to an acquittal as the crops were removed under bona, fide claim of right and the removal would not amount to an offence under Section 319, Indian Penal Code even though the claim might be ill founded in law and in fact. In support of his contention he placed reliance on a large many authorities including, A.I.R. 1962 S.C. 587 and, 1964 (1) S.C.J. 419.