R.S. Bindra, J.C.
1. The facts bearing on this criminal revision petition filed by the convicts J. K. Chose and M. M. Ghose can be summarised in a few words. The respondent S. R. Poddar purchased 3 kanis of land from one Abdul Kahainan, on 6-1-J 961. On the west of that piece of land flows the river Gumti, It appears that consequent on change of course ot that river about 6 gandas of land were thrown up adjoining the land purchased by S. R. Poddar. After that accretion, S. R. Poddar sold back to Abdul Rahaman western 2 kanis out of 3 kanis and 6 gandas in his occupation. This piece of 2 kanis was then secured by the petitioners in a transaction of exchange from Abdul Rahaman, Subsequent to that exchange, a boundary dispute cropped up between the petitioners and the respondent. The respondent having felt apprehensive that the petitioners would encroach upon some area in his occupation, he moved an application against them Under Section 144, Criminal Procedure Code in the year 1966. That case was ultimately dropped as a result of compromise arrived at between the parties on 6-4-1966. Ext. P-4 is the copy of the compromise deed executed between them. The incident which gave rise to a complaint, Under Section 447, Indian Penal Code, again. 5 the present petitioners by the respondent took place, on 11-12 1966, at about 7-30 A. M. The respondent mentioned in the complaint filed by him that the petitioners demolished the ail indicating the boundary between his land measuring about 1 kani and 6 gandas and the petitioners' land measuring 2 kanis and thereafter usurped a strip of land measuring 2 cubits in breadth and 15 to 16 cubits in length out of the western part of the land in his occupation. Another allegation made in the complaint was that chillies and other crops of the value of Rs. 50 to 60 of the petitioners standing on the area encroached upon were also damaged. The defence set up by the petitioners was one of pure denial.
2. The trial Court found the charge Under Section 447 fully established against the petitioner M. M, Ghose and charge Under Section 447, read with Section 109, Indian Penal Code, brought home to the petitioner J. K. Ghose, and so by its judgment dated 29-11-1967 convicted and sentended the former to a fine of Rs. 20/-, or, in default, 15 days' rigorous imprisonment, and the latter to a fine of Rs. 25/-, or, in default, 20 days' rigorous imprisonment. The two petitioners challenged the correctness of their convictions and sentences bv filing an appeal in the Court of Session. The appeal came up for hearing before the Assistant Sessions Judge Shri S. C, Das, who rejected the same on 22-7-1968 bv upholding the findings of the trial Court. It is against the latter judgment that the instant revision petition was filed.
3. The only point urged by Shri N. L. Choudhury on behalf of petitioners, was that there being a bona fide dispute respecting the ownership of the strip of land in question the Courts below had gone wrong in holding that the petitioners had been guilty of criminal trespass. In support of that contention he invited this Court's attention to the observations made by the learned Assistant Sessions Judge in para 9 of his judgment where it is stated that it was not necessary or essential for the Court to determine the ownership of the land, which had accreted to the original area of 3 kanis once owned by Abdul Rahaman and that the question of ownership may well be decided between the parties in a regular title suit. I think these observations of the learned Assistant Sessions Judge per se do not yield the conclusions, as canvassed on behalf of the petitioners, that the petitioners had a bona fide claim to the strip of land in dispute or that the charge Under Section 447, Indian Penal Code had failed. The definition of the expression 'Criminal trespass' as given in Section 441, Indian Penal Code makes it abundantly clear that it is an offence against possession over property and not ownership thereof. Hence, strictly speaking, the question of title to the property said to have been criminally trespassed upon is not germane to the charge Under Section 447, Indian Penal Code. The Assistant Sessions Judge, it may be pointed out, gave the definite finding in para 10 of his judgment that it was proved to the hilt by the testimony of independent and competent witnesses that the present petitioner had 'entered into the said land after cutting the entire demarcating boundary ail on 3rd of Pous at about 7/7-30 A. M. with the intention to possess the land illegally which was in possession of the complainant'. According to this finding of the Appellate Court, all the ingredients of criminal trespass as defined in Section 441 Indian Penal Code. I feel satisfied, are proved. It remains to be said that Shri Choudhary very rightly did not challenge the findings of fact concurrently reached by the two Courts below for he conceded at the very outset of his arguments that in a revision it was not open to him to assail .such findings.
4. The assertion of bona fide claim by the petitioners to the land in dispute is clearly negatived by the document Ext. P-4, according to which the present petitioners agreed that the respondent would continue in possession of 1 kani and 6 gandas odd of the land on the east and that they would not disturb his possession over that land. The document as stated before bears the date 6-4-1966 and the occurrence culminating in this revision petition took place on 11-12-1966. In face of the clear-cut admission made by the petitioners only 6 months before 11-12-1966. that the respondent was in possession of the land reinforced by their assurance that they would not disturb respondent's possession over that land, it is amazing that the defence of bona fide assertion of title to the property should be set up. In support of that defence reliance was placed on the decision in Mahan Singh v. Rana Partap , in which it was observed that 'Where it is clear that there is a bona fide dispute regarding the title to the land in dispute it cannot be said that any offence Under Section 447 has been committed.' This headnote of the authority must not be read in isolation or torn from the context of the facts established in the case. It was found by the High Court from the materials on record that the petitioners beiore it had encroached upon a thoroughfare in bona fide belief that they were the owners of the encroached site. The complainant Rana Partap of that case had alleged that as a result of erection of a wall by the accused he 'had been deprived of the possession of the property and passage to his property.' The High Court held that the allegations of the complainant were not established inasmuch as the land encroached upon was not proved as belonging to him but was actually a thoroughfare rb which the accused laid a bona fide claim of ownership. Since the allegations on which Rana Partap had come to the Court had remained unproved, there was no way out for the High Court but to quash the conviction and sentence of the petitioners. However, the facts of the reported case are clearly distinguishable from the one in hand. In our case it is proved by oral and documentary evidence that the respondent herein had been in physical occupation of the strip of land in dispute, that his possession was recognized by the petitioners by a document subscribed by them on 6-4-1966, and that on 11-12-1966 they had encroached upon that land by show of force and in teeth of opposition of the respondent. Therefore, the authority relied upon by Shri Choudhury is of no help to the petitioners. The action of the petitioners in entering upon the land after demolishing the intervening boundary ail was beyond doubt mala fide in the background of their written admission dated 6-4-1966.
5. Mere assertion of a claim of right to the property in dispute is not in itself a sufficient answer to the charge Under Section 447, Indian Penal Code. If the Court reaches the conclusion that the accused was not acting in the exercise of a bona fide claim of right while entering upon the land in dispute, it will have no option but to convict the offender provided the other ingredients of criminal trespass are established. It is true that to prove criminal trespass it is primarily for the prosecution to establish that the real or dominant intent leading to the entry was to commit an offence or to insult, intimidate or annoy the occupant, or that the claim of right was a mere cloak to cover the real intent. Nevertheless, if the circumstances established on the record are such that the accused could, not have entertained the belief in good faith that he was entitled to the possession of the land in dispute, it would be a fair inference that he intended the annoyance which his action must have caused to the complainant and so he must be convicted and adequately punished. The circumstances proved in our case definitely negative the Claim of bona fide title to or possession over the land in dispute. In the first instance that claim is negatived by the document Ext. P-4 subscribed by the accused themselves. Further, by the time the respondent had sold 2 kanis of land on the west to Abdul Rahaman the plot of 3 kanis purchased earlier from the latter by the respondent had been augmented to 3 kanis and 6 gandas due to alluvial action, and since the petitioners were successor-in-interest to Abdul Rahaman respecting only 2 kanis of land, they could lay no legitimate claim to 1 kani and 6 gandas, located just on the east of the land purchased by them or to any portion thereof.
6. For the reasons stated above, the revision petition fails and is rejected.