KAILASH SINGH Vs. EMPEROR

JUDGEMENT

(1.) The petitioners in this case have been convicted under Section 147, Penal Code and sentenced to pay a fine of Rs. 50 each in default to undergo two months rigorous imprisonment. There is also a conviction under Section 379, Indian Penal Code, but no separate sentence has been passed thereunder. The common object of the assembly is said to be cutting away of some crop.

(2.) The case for the prosecution is that one Sheobalak Prasad had about 26 bighas culturable land including plots 1179 and 1191 in mauza Jamuama. While still a minor, he shifted from, his parental home and settled at his maternal grandfather's place at Monghyr having acquired property by gift. He had a gotia called Jugeshar Prasad who was in possession of Sheobalak's lands in Jamuama till his death in the year 1931. The lands continued in possession of the widow of Jugeshwar, namely Musammat Debi Sen. The remaining portion of his lands were in possession of bataidars. Now Sheobalak sold some of his lands including plots 1179 and 1191 to Kailash Singh and Chamari Singh by registered kobalas on 5th June 1939, When these purchasers wanted to take possession they were resisted by Mt. Debi Sen's men. A 144 proceeding was started and decided in favour of the lady. The occurrence out of which the present application arises took place on the 12 September 1940.

(3.) An attempt has been made in the argument that this case is in the nature of a civil dispute and not a fit subject for a criminal trial. In support of the contention authorities beginning from Sadasiv Singh V/s. Emperor to Madhusudan Das v. Emperor A.I.R. 1922 Pat. 12 have been referred to; but the real test in a case of this nature, as laid down in Abdul V/s. Emperor A.I.R. 1929 Pat. 86, is as to which" of the parties had grown the crops. On the probablities of the case also, it appears that once Jugeshwar gob possession of the lands he was not willing to part with that possession and his possession continued till the date of the occurrence. My attention has been drawn to two documents in this case. Exhibit 1 is a letter dated 17 November 1919, which says that Jugeshwar was looking after the property belonging to Sheobalak; and Ex. c is a receipt dated 1 July 1989, in support of the statement that a thousand rupees had been paid to Musammat Debi Sen. The probabilities are, as I said, that the prosecution party continued in possession of the property, and on the evidence the trial Court has come to the finding that the crop was grown by the complainant's party. So whoever removed the crop when it was shown by the complainant was guilty under Section 379 and if they formed members of an unlawful assembly they would be guilty under Section 147.