1. This is a case of three accused, a father and his son and a joint tenant of the father against whom the present applicant asks for an order under Section 522 of the Code of Criminal Procedure. It is an admitted fact that they were ejected from a certain holding for failure to pay arrears of rent and that on the 16th of April 1923, formal possession was given to the landlord. One of the landlord's karinda Shamlal filed a complaint under Sections 352 and 447 of the Indian Penal Code in which he alleged that when he had gone to plough the holding on the 8th of July 1923, he was resisted and an assault was committed upon him by these three accused. The main accused Naubat set up a defence which is, frequently, set up in these cases, but which I find it difficult to understand any Court listening to or allowing to be set up. Naubat's defence was 'though formal possession was given to the landlord, I, as a matter of fact, have never given up actual possession.' This is a state of affairs which, within my own experience, I have known to lead, time after time, to riots and murders. To my mind the bare defence 'I have not given up and I will not give up actual possession though I have been legally ejected' is tantamount to and should be treated as a plea of guilty when the complaint is one of trespass. It is no defence at all. I have asked Mr. Girdhari Lal Agarwala who appears for Naubat and he tells me that all that can be said for Naubat is that he has some plea that proceedings in the Revenue Court were in one particular detail or another kept from his knowledge. Be that as it may there is no denial that Naubat knew that he had been ejected by process of law.
2. On the hearing of this complaint the Tahsildar after hearing the evidence came to a finding of conviction not under Section 352 but under Section 447. I find it difficult to read into that finding a conviction of criminal trespass on the particular day on which Shamlal is said to have been resisted. It simply amounts to a finding that on some day or other a patwari saw Naubat, etc., cultivating this holding from which he had been legally ejected. Does that amount to a trespass? It is perfectly true that it does. But it does not appear to be a finding as to a criminal trespass committed on the occasion which was the subject-matter of Shamlal's complaint. Hewever, on this Shamlal, the karinda, of the landlord applied for an order under Section 522 restoring his master or himself on behalf of his master to possession. The Tahsildar who was the Trial Court and the District Magistrate in revision refused to give him that order. If the Tahsildar's order had been a definite finding that criminal trespass had been committed on that day, as Shamlal with certain' exaggerations complained, then I should have been prepared to hold that Shamlal being in possession as alleged in his complaint was resisted with a show of force and I would readily have given him the order for which he asks. But in view of the vague nature of the finding of the Trial Court I cannot even say that he has held that the criminal trespass was committed on the day when Shamlal says it was committed. There is one matter which I think I should make clear for the benefit of complainant and that is that while it is admitted here that Naubat Ram has been ejected ' by process of law from that holding, even though it was only a formal possession that was given to the landlord, Naubat Ram's maintenance or attempted maintenance of his physical possession of the land is wholly illegal until such time, if any, that he may get himself restored by process of law. The application is rejected.