ABDUL ALI SAHIB Vs. AMIRUDDIN

JUDGEMENT

(1.) This is an application to revise the order of the Sub-Divisional Magistrate of Cuddalore. The petitioners have been convicted of trespass and assault under Secs.447 and 352, Indian Penal Code, and sentenced to pay fine. The contention of Mr. Ethiraj for the petitioners is that the petitioners acted in the bona fide exercise of their civil. right in ploughing the field in question and that their act does not amount to an offence. There is a good deal of evidence on both sides, but there is the outstanding fact that the property belonged to Kathifabi under the sale-deed executed by Hatiz on 29 September 1886, which is marked Ex. 1. The petitioners claim under Kathifabi; she executed a sale-deed on 11th. December 1922, Ex. 7, to one Mali Hasan Saheb. The complainant's case is that he got an oral sale from his mother-in-law Kathifabi of the whole property and has been enjoying the property for forty years. It may be that his case is true; but when a person who has an ostensible title sells a land to another, and that man goes and ploughs it, it cannot be said that he commits criminal trespass. There is a bona fide claim of civil right on the part of the petitioners, and their act in ploughing the field in question is not an offence under Section 447.

(2.) If the land was the land of Kathifabi then the act of the accused would not amount to an offence. In the state of evidence it cannot be said for certain that the complainant is the owner of the land and, therefore, the conviction of criminal trespass is bad.

(3.) As regards assault, that also depends upon the question whether the complainant was entitled to the land or the petitioners. If the petitioners were entitled to the land they have a right to plough it, and if a person objects to it, an assault of the kind now in question would be justified in maintaining possession of the land.