T.N.R. Tirumalpad, J.C.
1. This is a petition for revision of the order of the learned Sessions Judge, Manipur, in Criminal Revision No. 53 Order 1956, by which he confirmed the order of conviction and sentence of fine of Rs. 20/- each passed on the two petitioners by the First Class Magistrate, Imphal, in Criminal Case No. 63 Order 1956.
2. The petitioners were charged under Section 447 I.P.C. with having committed criminal trespass on the land belonging to the respondent Order 6-7-56. The land in question was said to be one sangam in extent and was part of what is known asNgangou Loukon. This Ngangou Loukon was originally a Government fishery and later it seems to have been thrown open for cultivation to the surrounding villagers in 1948-49, The lands were to be distributed according to the agreed proposal of the Village Committees and allotments were to be made and pattas to be issued by the Government. This was spoken to by the Supervisor Kanungo examined as a Court witness in the case. It would appear however that no final allotments hava so far been made by the Government or pattas issued. Lands have only been allotted to various villagers at the rate of one Lourak (2 sangams) per head by the village elders. The respondent herein was allotted one lourak in two blocks of one sangam each at a distance of one mile from each other. The dispute in this case was about one of the blocks of one sangam in extent. D. W. 5, examined for the defence, said that this block .was plot No. 13 in the plan prepared by the village elders, that the plot to the immediate south of it, namely, plot No. 16 was allotted to Achou Mia, the father of the first petitioner Niza-muddin, while the plot to the south of plot No. 16 namely, plot No. 24 was allotted to the second petitioner Nazimuddin. Each plot was one sangam in extent.
3. Now the respondent's case before the Magistrate was that Order 6-7-56, the petittioners colluded together and made an encroachment into his land, wherein he had already sowed the seeds and in spits of his protest they unlawfully ploughed the field and they chased him with Daos in their hands. The first petitioner admitted ploughing the disputed land, but his defence was that the said land belonged to his father Achou Mia and was in his possession and that he did not threaten the respondent. In other words, the dispute was whether the land in question formed part of plot No. 13 or plot No. 16. But the second petitioner pleaded alibi and said that he was never at the scene of occurrence on that day.
4. The respondent examined himself as P. W. 1 and two other witnesses, P.Ws. 2 and 3, who had come running to the scene of occurrence on the alarm raised by him and who had seen the two petitioners chasing the respondent with Dao and spade in their hands. P. W. 4, the brother of the respondent was examined to show that the respondent immediately reported the criminal trespass to him and to show that the criminal trespass to P. W. 4, when he went to the place of occurrence. P. Ws. 1 to 4 generally spoke about the possession of the disputed land by the respondent.
5. The defence examined 5 witnesses. D.Ws. 1 and 3 were for the second petitioner to prove his alibi. I may straightway say that their evidence was rightly rejected by the Magistrate. It was clear from the evidence of P.Ws. 1 to 4 that the second petitioner was also in the disputed land that morning. D.Ws. 2, 4 and 5 were examined in support of the first petitioner's contention that the disputed land belonged to him, D.W. 2, the father of the first petitioner stated that he had been in possession of and enjoying the said land for about 12 years.
According to him, the land of the respondent was to the north of his land. Both parties are agreed that the land of the respondent and that of D.W. 2 lie touching each other, the land of D.W. 2 being south of the land of the respondent. D.W. 4 was one of the elders, who distributed the lands. But he was unable to say to whom the land in dispute was allotted. D.W. 5 as already stated mentioned the numbers of the plots and also referred to a plan in the possession of the village elders showing the location of the plots. But the said plan was not got produced in the case.
6. After the oral evidence on both sides was over, the Magistrate went on a local inspection Order 2-9-56 to satisfy himself regarding; possession. He has made a memorandum of his inspection. From! the memorandum I find that in the course of the local inspection, the Magistrate ascertained from the village elders, namely, Tomba Mia, and others. who were members of the village Committee appointed for the distribution of allotments that the respondent was in possession of the disputed land and also that the allotment! was carried out by a Village Committee consisting Order 11 elders of the surrounding villages which share the settlement.
I am afraid the learned Magistrate committed a very serious error in obtaining information from the village elders regarding possession in the course of his local inspection and in using it as evidence in the case. If he wanted any such evidence, it was his duty to have examined Tomba Mia and others of the village committee as Court witnesses and to have given an opportunity to the accused persons to test their evidence by cross-examination. The judgment of the Magistrate is thereby seriously vitiated as he relied on the impression formed during his local inspection without giving the parties an opportunity to rebut his opinion.
The local inspection took place after the Magistrate examined the accused. He did not further question the accused on the result of the opinion formed by him in the course of the local inspection. That was another serious error he committed. It is therefore clear that the judgment of the Magistrate cannot be allowed to stand. These serious mistakes committed by the Magistrate were lost sight of by the learned Sessions Judge in confirming the decision of the Magistrate in revision.
7. The question now is whether I should remand this case for a fresh enquiry by another Magistrate. After considering the entire question, I have decided that no purpose will be served thereby. It will be seen that the respondent gave no boundaries for the disputed land in his complaint petition. The first petitioner admittedly owned the land immediately to the south of the respondent's land. Both parties admit this fact. So the real dispute between the parties seems to be one of boundary as between their lands.
It is a case where the respondent and the first petitioner have a boundary dispute as to where the respondent's land ends and the first petitioner's land begins. Where a person enters such a land in dispute between him and another, it cannot be said that he did so with intent to commit an offence or to intimidate, insult, or annoy that other person.
Nor can it be stated definitely that the other person wag in possession of the disputed land, in the face of the existence of a dispute. In a case under Section 447 I. P.C., which is based on Section 41 I.P.C., the intention is the most important factor.
Unless, the complainant proves such intention, it cannot be said that the offence has been established. Where, as in this case, there is a bona fide dispute between the first petitioner and the respondent as to the respective boundaries of the lands each party is in possession of, it is a matter to be decided by a Civil Court. Criminal Courts cannot attempt to adjudge as to the right of either party to be in possession of any particular land. They can decide only the factum of actual possession. Where there is thus bona fide dispute about possession, a Criminal Court ought to refer the matter to a Civil Court for adjudication and not attempt to establish the right of any party to be in possession. That will lead to gross miscarriage of justice. It is not necessary therefore to remand this case for a fresh enquiry. As it is a pure and simple boundary dispute I do not therefore propose to remand this case.
8. In view of my finding that the order of the Magistrate is vitiated by material irregularity, I set aside the conviction and sentence of the peti tioners by the Magistrate as well as the order pass ed by the Sessions Judge in revision confirming the said conviction and sentence. The petitioners are acquitted of the offence that they were charged with.