Hombe Gowda, J.
1. This revision petition Is directed against the judgment of the Sub-Divisional Magistrate, Hospet, in Or. App. No. 36 of 1954, confirming the convictions and sentences passed against the petitioners by the Stationary Sub-Magistrate. Hospet, in C. C. No. 1352 of 1953 on his file.
The petitioners have been convicted under Sections 447 and 379, I.P.C. and have each been sentenced to pay a fine of Rs. 10/- and Rs. 15/- respectively and in default of payment of fine, to suffer rigorous imprisonment for one week and two weeks respectively on each of the counts.
The case for the prosecution is that the petitioner trespassed into the wet land bearing S-No. 318/2 of Malapanagudi village belonging to one Sulakshana Bai on 7-12-1952 and forcibly cut and removed the paddy crop which had been raised by her tenants and thereby committed offences punishable under Sections 447 and 379, I.P.C.
On the report of the V. M. of the village, the Sub-Inspector of Police placed a charge-sheet against the petitioners before the Stationary Sub-Magistrate, Hospet for offences under Sections 447 and 379, I.P.C. after necessary investigation. The learned Magistrate framed charges for the abovesaid offences against both the petitioners and called upon them to enter upon their defence. The petitioners stated before the learned Magistrate, when they were examined under Section 342, Criminal P.C. that the land in dispute was in the possession of petitioner 1 and that the crop in dispute had been raised by him and that they had not committed any act of trespass or theft in respect of the said crop.
Having entered upon their defence, the petitioners examined some witnesses to prove that petitioner 1 was in actual possession and enjoyment of the land in dispute and the crop in question had been raised by his tenants for and on his behalf and that he had a bona fide right to cut and remove the said crop. The learned Magistrate held that the land in dispute was in the possession of Sulakshana Bai; that the crop in dispute had been raised by her tenants; that the bona fide claim advanced by petitioner 1 was untenable and found the petitioners guilty for offences punishable under Sections 447 and 379, I.P.C. and convicted and sentenced them as abovesaid.
The petitioners preferred an appeal against the convictions and sentences passed against them by the learned Stationary Sub Magistrate, Hospet, to the Court of the Sub-Divisional Magistrate, Hospet. The learned Sub-Divisional Magistrate, as already stated, dismissed the appeal and confirmed the convictions and sentences passed against the petitioners. It is against this judgment that the present revision has been filed by the petitioners.
2. It was contended by Sri Ullah, the learned Advocate for the petitioners, that the appellate Court had not at all considered the evidence of the defence witnesses and had not applied its mind to the question as to whether there was any substance in the contention of the petitioners that the land in dispute was actually in the possession and enjoyment of petitioner 1 and the crop in dispute had been raised for and on his behalf by the tenants. He contended further that the judgment of the appellate Court was almost a paraphrase of the judgment of the trial Court and did not disclose that it had applied its mind independently to the facts of the case, and had arrived at a, conclusion of its own, There is some force in this contention.
The conspicuous omission to refer to the evidence of the defence witnesses in the course of the judgment of the appellate Court supports the contention of the learned Advocate for the petitioners that the learned Sub-Divisional Magistrate did not actually apply himself to the facts of the case and form an explicit opinion of his own on the questions of fact involved in the case, (as required under the law. The learned Magistrate has not formulated the questions for decision and discussed the evidence under the necessary heads and arrived at conclusion of his own before confirming the convictions and sentences passed against the petitioners.
The learned Magistrate was bound to consider the evidence of the defence witnesses, for what it may be worth, before arriving at a conclusion that the land in dispute was in the possession of P. W. l - Sulakshana Bai and the crop in question had been raised by her tenants. On the evidence on record, it cannot reasonably be said that the claim of petitioner 1 that he was in actual possession of the land in dispute, that he had raised the crop in dispute, and had a right to cut and remove the same was mala fide or baseless.
It is admitted by the prosecution that the land in question had been granted to petitioner 1 an ex-military employee, in the year 1947 and was in his possession till it was granted to Sulakshana Bai on 21-12-1949, under Ex. P-6. It is the case of the prosecution that the land in dispute which was in the possession and enjoyment of petitioner 1 was actually delivered over to Sulakshana Bai on 21-12-1949.
It is undisputed that no eviction order had been passed or served on petitioner 1. It is not also disputed that petitioner 1 was not a party to Ex. P-6 or to any other document under which the land is alleged to have been delivered over to Sulakshana Bai on 21-12-1949. It is alleged by the prosecution that P. W. 5 Sidappa, who was a tenant of petitioner 1 attorned to Sulakshana Bai on and from 21-12-49 by attesting Ex. P-6 and therefore, the land was actually delivered over to the possession and enjoyment of Sulakshna Bai from that day onwards.
3. That the land in dispute was not actually delivered over to Sulakshana Bai on 21-12-49 is clear from Ex. P-10, a petition presented by P.W. 2, Seetha Bai, the mother of Sulakshana Bai on 29-7-1952. It is stated in this petition that Siddappa, had joined hands with the petitioner and had helped them to take forcible possession of the same on the ground that the same had been allotted to petitioner 1, (an ex-service military man).
It is further recited in Ex. P-10 that none of the villagers of Malapanagudi were coming forward to cultivate the land on behalf of P.Ws. 1 and 2 being afraid of the petitioner and their tenant Siddappa; that the petitioner had illegally deprived P. Ws. 1 and 2 of their enjoyment of the land and as such it was necessary that the matter should be enquired into urgently and the right of Sulakshana Bai protected.
Exhibit P-1l is another complaint lodged before the Tahsildar of Hospet, Bellary District, by P. W. 1, Sulakashana Bai on 28-7-1952 asking for the same relief. Exhibit P-12 is the statement of petitioner 1 recorded by the Tahsildar on 30-7-1952 in respect of Exs. P-10 and P-1l. It is clear from a perusal of Ex. P-12 that petitioner 1 stated in unequivocal terms that he was in actual possession and enjoyment of the land in dispute; that he had raised the crop without the knowledge of the fact that the land had been allotted to Sulakshana Bai and that he was not prepared to give his possession.
It is, therefore, clear that in the month of July 1952, petitioner 1 was in possession and enjoyment of the land and had asserted his right to continue to be in possession and had further stated that he had raised the crop on the land. It is after all these proceedings that the Tahsildar of Hospet sent Ex. P-13 to the Sub-Inspector of' Police, Hospet Kasaba to take action against petitioner 1 and to submit a report in the matter.
Exhibit P-14 is the report submitted By the Sub-Inspector of Police Hospet on 27-8-1952, in which he has stated that the parties had settled their disputes amicably and Sheik Ahmed (petitioner 1) had given possession of the land to Sulakshana Bai and therefore, no further action was necessary or called for in the matter. It Is interesting to note that Ex. P. 14 is not signed by petitioner 1.
There is no other documentary evidence to prove that petitioner 1 had settled the matter with Sulakshana Bai or her mother and had agreed to give up possession or had actually delivered possession, to any one of them on or before 27-8-52. The evidence, on the other hand, discloses that petitioner 1 continued to be in possession and enjoyment of at least a portion of the land even subsequent to the date of Ex. P(14) and had raised the crop on the same.
4-5. (His Lordship then discussed the oral evidence and continued as under:-
It is clear, therefore, from a perusal of the evidence adduced in the case that petitioner 1 was asserting his bona fide right to be in possession and enjoyment of the land and had been contending that he had raised the crop in question and had a right to cut and remove the same. The dispute between the parties is mainly one of civil nature. Petitioner 1 has been contending through-cut that he bona fide believed that the land belonged to him, having been granted to him. in the year 1947 by the Revenue Authorities and that he had a right to be in possession thereof, till he was duly evicted. He had also been contending that he had raised the crop in dispute and therefore, had a right to cut and remove the same.
P. W. 2, on the other hand, has been asserting her right to the crop on the ground that her tenants had raised the crop. When it is asserted by a person accused of theft and trespass that the land in dispute was in his possession; that he had raised the crop in dispute and had a right to cut and remove the same and his assertion is supported by some evidence, he cannot be convicted for offences of trespass and theft unless it is proved beyond doubt that the claim is a mere pretence.
As already pointed above, in this case, it cannot reasonably be urged that the claim of petitioner 1 that he continued to be in possession of the land in dispute and had raised the crop in dispute was a mere pretence. In cases of the type on hand, where the alleged theft consists in the removal of the crop grown on the land, the most vital point to be investigated is as to which of the parties had raised the crop in question and the decision on the point will, in the majority of cases, enable the Court to come to a definite conclusion as to whether the claim of the accused person is made in good faith or is a mere pretence.
On the evidence on record, the claim of petitioner 1 to the crop in question cannot be said to be mala fide or a mere pretence. Petitioner 1 was admittedly in possession of the land on 30-7-52, It is impossible to believe the version of the P.Ws. that petitioner 1 had allowed The tenants of P.Ws. l and 2 to enter upon the land in dispute and to raise the crop subsequent to the month of July 1952. In these circumstances, the learned Magistrate was not justified in finding the petitioners guilty of offences punishable under Sections 447 and 379, Penal Code, and convicting them,
6. Reference in this connection may be made to a decision reported in - 'Alagaraswami Te-wan v. Emperor', 28 Mad 304 (A), wherein it has been laid down that it is the province of civil Courts to decide questions of ownership of land between Government and parties and if the Revenue Authorities take summary possession of land (as in the present case) they become mere trespassers and there is nothing dishonest in the owner taking possession of his own property.
In that case, the accused had removed certain bamboos on the ground that he was the owner of the land. Prior to his conviction, disputes had arisen between the Revenue Authorities and the accused regarding the ownership of the land. The accused contended that he bona fide believed bamboos to be his property at the time he cut and removed them.
The learned Magistrate found that the Revenue authorities had taken possession of the land at the time when the bamboos were cut and removed and found him guilty of the theft of the bamboos and convicted him. The High Court of Madras held that the conviction was wrong. It was observed by the High Court that the questions to be considered were (1) whether the bamboos did in fact belong to the petitioner or to Government or (2) whether if they did not belong to the petitioner he bona fide believed they did.
The facts of the present case are almost similar to the facts established in the abovesaid case. Applying the principles laid down in the above case, it cannot be said that the petitioners had, committed any offence under Sections 447 and 379, Penal Code and the convictions of the petitioners cannot, therefore, be supported and are liable to be set aside.
7. In the result, therefore, this revision petition is allowed and the convictions and sentences passed against the petitioners are set aside and they are acquitted. The fine amounts, if already paid, are ordered to be refunded to them.