NAGO WANI Vs. EMPEROR

JUDGEMENT

(1.) THE applicant Nago was convicted by the 2nd Class Magistrate, Sausar, of an offence Under Section 25(H) of the Forest Act of 1927 and sentenced to a fine of Rs. 75. The applicant is a tenant of mouza Ghogri, District Chhina wara, the, field of which village immediately adjoins the Government forest.

(2.) THE prosecution case was that the "Forest Ranger found that the accused had cultivated a small strip of forest land amounting to 24 of an acre, that he went to the spot with Balaji Patwari (P.W. 1) and measured the alleged encroachment in his presence as well as that of Rati Mukaddam (P.W. 2) and Sito Kotwar (P.W. 3). The applicant's hut was found to be standing on 4 of an acre and the crop on 20 of an acre. The applicant in the Magistrate's Court denied all knowledge of the encroachment and alleged that he had been in possession of the laud for some 10 or 12 years. The Magistrate found the applicant guilty as stated above He applied to the Court of the District Magistrate, Chhindwara. The District Magistrate held that there was a discrepancy between the two maps filed by the prosecution and neither of these maps was properly proved. From the evidence of the Patwari and the Revenue Inspector, however, he was of opinion that there was no doubt that a part of the applicant's kotha and the field did lie within the Government forest. He also held that on the evidence of Balaji (P.W. 1), Rati (P.W. 2) and Sito (P.W. 3), Nago was warned that he had encroached and was asked to give up the land.

(3.) THE onus of proof was on the prosecution in a case like the present and so far as the evidence on record goes, the presumption must be that the applicant either himself or through his predecessors has been in possession of the land for many years past. There is nothing to show under what provision of law any formal action was taken by the forest authorities for the removal of the applicant from the land in question. The land in question must be held to have been occupied land and not to have been forest or waste land, until the latter point is properly established: of Secretary of State v. Bapanamma Garu [1896] 19 Mad. 165 Whether, however, the forest authorities have power from the executive point of view to remove the applicant from this land is a question which it is impossible for me to solve on the unsatisfactory and insufficient evidence on record. The action of the forest authorities in this case seems to have been informal to a degree. For the purposes of this criminal case it must suffice to say that I do not consider the case falls Under Section 25(1), Forest Act, because it is perfectly clear that if this land had been wrongly cleared or broken up in spite of its being reserved forest such clearing or breaking up took place at the hands of some of the predecessors of the applicant and not in his time. For these reasons, however, I am of opinion that the conviction cannot stand.