GAJENDRA GHORAI Vs. EMPEROR

JUDGEMENT

(1.) This Rule involves a contest between two persons who are, respectively, the under- tenants of Baidyanath and Sukhamani Dey. Baidyanath bought the disputed land from the guardian of a certain minor. That minor, however, subsequently sold the same land to Sukhamani Dey. Thereupon, Baidyanath obtained an ex parte decree on the 14th March 1910, declaring his right to the land; and, in pursuance of that decree, he secured possession.

(2.) Now, the riot in respect of which the petitioners have been convicted, and which conviction has been upheld by the District Magistrate on appeal, was due to an assertion of right by the petitioners who held as bhagdars under Sukhamani. It has been found that the crop for which, the quarrel took place, was grown by Sukhamani, that is, by the petitioners who would be entitled to possession of the same in their capacity as bhagdars. The decree in favour of Baidyanath was one passed in a suit to which the petitioners were not parties; and, even if they had been parties we are not prepared to accept the contention that possession of the land would necessarily on note delivery of possession of the crop grown thereupon. On this point, Mr. Justice Jackson, in Afatoolla Sardar v. Dwarka Nath Moitry 4 C. 814 the case to which the District Magistrate has referred, expressed his judgment with some uncertainty. He was then dealing with the sale of an under-tenure for arrears of rent under Section 66 of Bengal Act VIII of 1859.

(3.) On general principles, however, there can be no doubt that the petitioners who actually cultivated the disputed crop, being no parties either to the suit or to the delivery of possession of the land, were justified in claiming what they had grown and in resisting the action of the complainant when he wont to take possession. We are not prepared to say that the right of private defence was exceeded in the circumstances of this case.