1. The applicants Sri Narain and Raj Kishore have been convicted by a Special Magistrate for criminal trespass under Section 447, I.P.C., and sentenced to pay a fine of Rs. 20 each. They have come to this Court in revision. It appears that there was a grove on plot. No. 1039 in village Bhasot in the District of Jaunpur. One of the applicants is the son and the other a grandson of Tai Ram. It is alleged by them that one Ram Sarup-executed a deed of mortgage in favour of Tai Ram in respect of the grove in dispute. Ram Sarup's title is said to be derived from a lady named Mt. Raju, who was admittedly a co-sharer in the grove to the extent of one-third. The applicants case at the trial was that, in, the exercise of their right as mortgagees,, from Ram Sarup, the heir of the admitted co-sharer, Mt. Raju, they have every right to cultivate the grove land. The complainant does not claim more than, two-thirds of the grove, but denies that Ram Sarup had any right to the one-third belonging to Mt. Raju or that he mortgaged it to Tai Ram. His case was that the action of the applicants in forcibly cultivating the grove amounted to criminal trespass. The trying Magistrate has summarily dealt with the question of right, and while doubting the correctness of the applicants' allegation he has not recorded a definite finding on that question. It is not the function of the criminal Court to decide any question of disputed rights. All that it has to consider is whether the act of the accused amounted to a criminal trespass within the meaning of Section 441, I.P.C. That section defines criminal trespass as entry into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property unlawfully, remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence. It will be seen that the essence of criminal trespass is the intention to do one or the other of the acts specifically referred to in the section.
2. If such is not the intention of the person accused of the offence of criminal trespass but his entry into or upon [the property in dispute was with intent to assert or exercise a bona fide claim of 'right, such entry may or may not amount to civil trespass but will certainly not amount to criminal trespass punishable under Section 447, I.P.C. In the case before me there are circumstances which clearly lead to the inference that the applicants did not make an entry into the grove in dispute with any such intention as is referred to in Section 441, but in the honest, though possibly mistaken belief, that they had a right to cultivate the grove. They have produced a mortgage deed executed as far back as 1302 Fasli and a 'khatauni' for 1330 Fasli. The mortgage deed is an unregistered document; and the trying Magistrate seems to have ignored it for that simple reason. He has overlooked the fact that it was permissible to make a mortgage with possession without a registered instrument in 1302 Fasli where the sum advanced was less than Rs. 100. Registration became compulsory for all mortgage deeds by a subsequent amendment of the Transfer of Property Act. It will be for the Civil Court to pronounce definitely as to whether the mortgage deed relied upon by the applicants is valid and enforceable; but all a criminal Court has to see is whether this mortgage deed is relied on in good faith. We have also an extract of khatauni for 1330 Fasli in which the name of Ram Sarup, the ancestor of the applicants, is recorded. There are no other khataunis for previous and subsequent years on the record, and it will be for a competent Court to decide how far the entry relied on by the applicants is good evidence in support of the title set up by them.
3. Like the mortgage deed, this khatauni is to be looked at in the present case for the purpose of determining whether the action of the applicants in entering on the grove was bona fide. Besides these documents there is some oral evidence which supports the case of the applicants. That evidence is however, open to criticism and most of it is of no value. I do not attach any importance to it. In view, however, of the documentary evidence to which reference has already been made, I am not satisfied that the applicants attempted to cultivate the land in dispute with intent to intimidate, insult or annoy the complainant, or with intent to commit an offence. In this view, their conviction for the offence of criminal trespass punishable under Section 447, I.P.C., cannot be sustained. The application is allowed. The order of conviction is set aside. The fine, if paid, shall be refunded.