BHAGWAN DIN Vs. EMPEROR

JUDGEMENT

(1.) THIS is an application for revision of an order by which the applicants have been convicted under Section 447 of the Indian Penal Code and sentenced to fine. The facts are these: The Zemindar brought a suit for ejectment in a Revenue Court against Bhagwan Din accused and others on the allegation that they were tenants without rights of occupancy. They pleaded that they were occupancy tenants. The Court of first instance decided against them and made a decree for ejectment on the 26th of June, 1917. On the 23rd of August 1917 possession was delivered to the decree-holder. Of course the possession which was so delivered, was only formal possession, the lands not having any crops on them at the time and the decree-holder after delivery of possession not having ploughed the lands or sown any crops. The defendants to that suit preferred an appeal from the decree of the Court of first instance and during the pendency of the appeal they, on the 11th of October 1917, entered on the land and tried to plough it. It is in consequence of this act that they were prosecuted and have been convicted. Two contentions have been raised in this case. The first is that the decree-holder Zemindar had never got actual possession, and, therefore, could not be deemed to have been in possession within the meaning of Section 441 of the Indian Penal Code, and the second is, that there was no intention to commit an offence or to intimidate, insult or annoy any one in possession. In support of the first contention the case of In the matter of the petition of Gobind Prasad 2 A. 465 : 1 Ind. Dec. (N.S.) 863 was referred to. The view taken in that case was followed in Kunji Lal v. Emperor 21 Ind. Cas. 681 : 12 A.L.J. 151 : 14 Cr. L.J. 633. I do not deem it necessary for the purposes of this case to decide whether the possession delivered to the Zemindar, was actual possession or not within the meaning of the decisions to which I have referred and whether the possession mentioned in Section 441 of the Indian Penal Code, means actual possession or formal possession delivered by a Court. The real question is, whether there was any intention to commit an offence, or to intimidate, insult or annoy the Zemindar. As the result shows. Bhagwan Din, the person whose ejectment had been ordered, was not liable to ejectment as it was held by the Appellate Court subsequently that he was a tenant with rights of occupancy and the order of ejectment was set aside by that Court. Under these circumstances it cannot be said that the persons who were the tenants of the land and who as the event proved, were not liable to ejectment, intended to commit an offence, or to intimidate, insult or annoy the Zemindar, decree-holder, when they entered on the land which formed their occupancy holding for the purpose of ploughing and cultivating it. There was clearly no mala fides and they were apparently acting in the belief that they were entitled to continue in possession. In this view their conviction by the Court below was illegal and improper. I accordingly allow the application, set aside the order of the Court below, acquit the applicants of the offence of which they were convicted; and direct that the fines imposed on them, if paid, be refunded.