JAMINI KUMAR GHOSE Vs. SUDHIR RANJAN PODDAR

JUDGEMENT

(1.) THE facts bearing on this criminal revision petition filed by the convicts J. K. Chose and M. M. Ghose can be summarised in a few words. The respondent S. R. Poddar purchased 3 kanis of land from one Abdul Kahainan, on 6 -1 -J 961. On the west of that piece of land flows the river Gumti, It appears that consequent on change of course ot that river about 6 gandas of land were thrown up adjoining the land purchased by S. R. Poddar. After that accretion, S. R. Poddar sold back to Abdul Rahaman western 2 kanis out of 3 kanis and 6 gandas in his occupation. This piece of 2 kanis was then secured by the petitioners in a transaction of exchange from Abdul Rahaman, Subsequent to that exchange, a boundary dispute cropped up between the petitioners and the respondent. The respondent having felt apprehensive that the petitioners would encroach upon some area in his occupation, he moved an application against them Under Section 144, Criminal Procedure Code in the year 1966. That case was ultimately dropped as a result of compromise arrived at between the parties on 6 -4 -1966. Ext. P -4 is the copy of the compromise deed executed between them. The incident which gave rise to a complaint, Under Section 447, Indian Penal Code, again. 5 the present petitioners by the respondent took place, on 11 -12 1966, at about 7 -30 A. M. The respondent mentioned in the complaint filed by him that the petitioners demolished the ail indicating the boundary between his land measuring about 1 kani and 6 gandas and the petitioners' land measuring 2 kanis and thereafter usurped a strip of land measuring 2 cubits in breadth and 15 to 16 cubits in length out of the western part of the land in his occupation. Another allegation made in the complaint was that chillies and other crops of the value of Rs. 50 to 60 of the petitioners standing on the area encroached upon were also damaged. The defence set up by the petitioners was one of pure denial.

(2.) THE trial Court found the charge Under Section 447 fully established against the petitioner M. M, Ghose and charge Under Section 447, read with Section 109, Indian Penal Code, brought home to the petitioner J. K. Ghose, and so by its judgment dated 29 -11 -1967 convicted and sentended the former to a fine of Rs. 20/ -, or, in default, 15 days' rigorous imprisonment, and the latter to a fine of Rs. 25/ -, or, in default, 20 days' rigorous imprisonment. The two petitioners challenged the correctness of their convictions and sentences bv filing an appeal in the Court of Session. The appeal came up for hearing before the Assistant Sessions Judge Shri S. C, Das, who rejected the same on 22 -7 -1968 bv upholding the findings of the trial Court. It is against the latter judgment that the instant revision petition was filed.

(3.) THE assertion of bona fide claim by the petitioners to the land in dispute is clearly negatived by the document Ext. P -4, according to which the present petitioners agreed that the respondent would continue in possession of 1 kani and 6 gandas odd of the land on the east and that they would not disturb his possession over that land. The document as stated before bears the date 6 -4 -1966 and the occurrence culminating in this revision petition took place on 11 -12 -1966. In face of the clear -cut admission made by the petitioners only 6 months before 11 -12 -1966. that the respondent was in possession of the land reinforced by their assurance that they would not disturb respondent's possession over that land, it is amazing that the defence of bona fide assertion of title to the property should be set up. In support of that defence reliance was placed on the decision in Mahan Singh v. Rana Partap , in which it was observed that 'Where it is clear that there is a bona fide dispute regarding the title to the land in dispute it cannot be said that any offence Under Section 447 has been committed.' This headnote of the authority must not be read in isolation or torn from the context of the facts established in the case. It was found by the High Court from the materials on record that the petitioners beiore it had encroached upon a thoroughfare in bona fide belief that they were the owners of the encroached site. The complainant Rana Partap of that case had alleged that as a result of erection of a wall by the accused he 'had been deprived of the possession of the property and passage to his property.' The High Court held that the allegations of the complainant were not established inasmuch as the land encroached upon was not proved as belonging to him but was actually a thoroughfare rb which the accused laid a bona fide claim of ownership. Since the allegations on which Rana Partap had come to the Court had remained unproved, there was no way out for the High Court but to quash the conviction and sentence of the petitioners. However, the facts of the reported case are clearly distinguishable from the one in hand. In our case it is proved by oral and documentary evidence that the respondent herein had been in physical occupation of the strip of land in dispute, that his possession was recognized by the petitioners by a document subscribed by them on 6 -4 -1966, and that on 11 -12 -1966 they had encroached upon that land by show of force and in teeth of opposition of the respondent. Therefore, the authority relied upon by Shri Choudhury is of no help to the petitioners. The action of the petitioners in entering upon the land after demolishing the intervening boundary ail was beyond doubt mala fide in the background of their written admission dated 6 -4 -1966.