GHULETAN DUBE Vs. KAMLAPATI SUKLA

JUDGEMENT

(1.) THE question for decicion in this case is whether the petitioners could be lawfully convicted of the charge under SECTIONS 447 and 323, Penal Code in view of the allegation that there was a bona fide claim of right. For the prosecution it was alleged that on 16th June 1949 the petitioners encroached on Plot 166 by raising pillars. Complainant Kamlapati protested whereupon the petitioners assaulted him. It was pleaded in defence that the encroachment was made several years back and the case had been falsely instituted. THE lower Courts have nevertheless accepted the prosecution case as correct and convicted the petitioners.

(2.) IN support of this rule learned counsel pointed out that the petitioners have a house on Plots 163 and 165 which are adjacent to plot 166 which belonged to the complainant. It was also pointed out that the encroached portion of plot 166 was on same level as Plots 163 and 165 on which the petitioners have built their house and that the land west of the encroached portion was in lower level. It was, therefore, contended that the petitioners were erecting pillars in mistaken belief and so the petitioners could not be convicted of criminal trespaSections IN my opinion it is impossible to accept the argument of the learned counsel in this case. It cannot be disputed that a person who enters upon laud in the possession of another in the exercise of a bona fide claim of right cannot be convicted of criminal trespass because the entry was not made with any such intent as to constitute an offeree. But mere assertion of claim of right cannot in itself be a sufficient answer to a charge of criminal trespaSections It is the duty of criminal Court to determine upon the material of each case what was the intention of the alleged offender and if it arrives at the conclusion that he was not acting in the exercise of a bona fide claim of right then it cannot refuse to convict the offender. IN the present case it is important to notice that two persons made measurement of the alleged encroachment; and Amin deposed that the encroachment was 16' x 6' and the local board overseer who was deputed by the Court at the instance of the accused reported that the encroached portion was 11' x 8'. IN view of large area of encroachment it is impossible to hold that there was a bona fide intent on the part of the petitioners in erecting pillars on the alleged date. It is also important to observe that during the trial of the case the petitioners never suggested that they had claimed the land in dispute in good faith; on the contrary, the defence was that the encroachment was old and the complainant had no possession of the area encroached upon. This defence has been disbelieved by the lower Courts upon the evidence available. IN my opinion there is no merit in this application which is accordingly dismissed.