A.N. RAY, J.
1. This is an appeal by special leave from the judgment of the Punjab and Haryana High Court at Chandigarh, dated August 25, 1967.
2. The appellants are Mohan and Ranbir, two brothers and Ram Singh the father-in-law of Mohan. They were convicted under Section 326, read with Section 34 of the Indian Penal Code and sentenced to four years1 rigorous imprisonment and a fine of Rs 400 each and in default of payment of fine to a further rigorous imprisonment for six months. They were also convicted under Section 325, read with Section 34 of the Indian Penal Code and sentenced to three years1 rigorous imprisonment and a fine of Rs 200 each and in default of payment of fine to a further rigorous imprisonment for six months. They were further convicted under Sections 324 and 323, read with Section 34 of the Indian Penal Code and on the former offence sentenced to two years1 rigorous imprisonment while on the latter offence to six months1 rigorous imprisonment. The sentences were ordered to run concurrently.
3. The appellants preferred an appeal to the High Court. The High Court maintained the sentences and dismissed the appeal.
4. Ladhu and Rewat were two brothers. Ladhu married Mst Parmeshwari sister of Het Ram and Pura who were two brothers. Mohan and Ranbir are sons of Rewat. Rewat died in 1947. Het Ram and Pura who had been tenants of Ladhu and Rewat continued to remain in possession of the land as tenants. Birji widow of Rewat was alive. Het Ram and Pura are brothers-in-law of Ladhu. Het Ram and Pura made application for the purchase of the land of which they were the tenants. That application was against Ladhu, Mohan and Ranbir, Mohan was sued through Ladhu, though the mother of Mohan and Ranbir was the natural guardian. The Revenue Assistant accepted the application. Het Ram and Pura continued to remain in possession of the land which had been in the joint ownership of Ladhu and Rewat each of whom held half share in the land. After the death of Rewat also the ownership remained joint.
5. Mohan and Ranbir the sons of Rewat filed a suit against the order of the Revenue Assistant for declaring the sale of their share of the land to Het Ram and Pura as invalid and asked for possession. Mohan and Ranbir also alleged that Het Ram and Pura procured the alleged sale through the fraud of Ladhu. Their suit was decreed and an appeal was filed and it was alleged that an order staying dispossession was obtained.
6. The prosecution case is that on June 23, 1966, Het Ram and Pura were ploughing the land. Their sister Parmeshwari, Amri wife of Pura and Ladhu were also present at the field. The appellant Ram Singh armed with a gun along with Mohan and Ranbir armed with gandasas came and after giving a lalkara asked Het Ram and Pura to get out of the field. Ladhu replied that Het Ram and Pura would not go out as the land was still in their possession. Ram Singh threatened and as Het Ram and Pura did not leave the land, Ram Singh fired a shot with his gun which hit Ladhu on his right ankle. Pura in order to save Ladhu caught hold of the gun of Ram Singh. Thereupon Ram Singh asked Mohan and Ranbir to kill them. Mohan then struck a gandasa blow on Pura's hand and Ranbir Singh gave a gandasa blow on his arm and another on his head. Both Ranbir and Mohan inflicted further blows with the reverse side of the gandasas on Pura Het Ram ran towards them and asked them not to injure Pura. Thereupon, Mohan gave a gandasa blow on the head of Ladhu and Ranbir gave a gandasa blow on his right thumb. When Ladhu came to rescue. Ram Singh hit him with the butt of his gun and Mohan gave a gandasa blow on the head of Ladhu. Ranbir also gave a gandasa blow on the arm of Ladhu. At this juncture Parmeshwari and Amri fell upon Ladhu and they were also injured by Ranbir and Mohan. After about an hour and a half of the alleged occurrence one Sajjan Kumar accompanied by another Het Ram came on a tractor and removed the injured to Sirsa hospital. The sub-inspector recorded the statement of Het Ram on the basis of which the first information report was recorded at police station Sadar, Sirsa.
7. Counsel for the appellants contended that the appellants were in possession of the disputed land and therefore they had a right to ask Het Ram and Pura to vacate the land and if they did not then the appellants could throw them out. It was also said that the appellants had the right of private defence. The second contention was that Section 34 of the Indian Penal Code would not apply because each of them was responsible for individual acts. Thirdly, it was said that Mohan and Ranbir were young and they should have been considered under the Probation of Offenders Act.
8. In aid of the contention of possession of the land by the appellants reliance was placed on Exts. DB and DF Ext. DB is a judgment, dated March 16, 1966, in the suit filed by Mohan and Ranbir against Het Ram and Pura for a declaration that Mohan and Ranbir are the owners of 1/2 share in equal shares of agricultural land measuring 174 kanals 5 marlas and that the order of the Assistant Collector, dated March 24, 1962, that Het Ram and Pura had purchased the land from the appellants was null and void. This was a declaratory decree in favour of Mohan and Ranbir that they were the owners in equal share of 1/2 share of the agricultural land measuring 174 kanals 5 marlas, as fully described in the decree. Ext. D.F. was the affidavit in answer to the applications under Order 39, Rules 1 and 2 of the Code of Civil Procedure filed by Pura and Het Ram in the aforesaid suit. In para 2 of that affidavit affirmed by Mohan on April 29, 1966, it is stated that the appellants meaning thereby Mohan and Ranbir obtained possession over the land in dispute on April 1, 1966 and they were in possession of the 1/2 share out of 174 kanals 5 marlas and had sown bajra crop at the spot in the land. Reliance was also placed on Ext. DC the order, dated April 20, 1966, passed by the Subordinate Judge in execution proceedings which contained the remarks “Possession has been delivered. The decree is satisfied”.
9. It was said by counsel for the appellants that certified copies of documents would prove possession. The decree merely declared the rights of the parties. The decree does not prove actual possession. The affidavit affirmed by Mohan was his own statement that he and Ranbir obtained possession. The order of the Subordinate Judge in execution proceedings that possession had been delivered is to the same effect that possession had been obtained. The question is whether it was symbolical possession or actual possession. Documents do not prove either way. That is why evidence is important to find out whether there was actual possession.
10. Het Ram and Pura were tenants of Ladhu and Rewat. Het Ram and Pura made an application for recording purchase of the entire land of which they were the tenants. The application of Het Ram and Pura was allowed. Thereupon, the appellants Mohan and Ranbir sons of Rewat filed a suit for a declaration that Het Ram and Pura had not purchased the land. They succeeded in the suit and obtained a declaratory decree. After the appellants had obtained the decree they would take actual possession of the land by evicting Het Ram and Pura. Het Ram and Pura were owners of 1/2 share of the land by reason of their purchase of Ladhu's share. As far as Rewat's share was concerned, the appellants became entitled to the other half by reason of the declaratory decree but Het Ram and Pura were also tenants and that tenancy had not been determined.
11. In cases of joint ownership of land separate possession is primarily proved by partition and allotment of shares to the parties and thereafter delivery of actual possession. In the present case there is no evidence of partition and separation of shares and possession in severalty.
12. On the question of possession the High Court came to the conclusion that the assertion of the appellants that they had taken possession of the land would not prove possession. Until the land was partitioned each owner would have right to remain in possession of the entire portion of the land. The reason is obvious that in the absence of division it is impossible to predicate as to which share belongs to which party.
13. The appellants relied on three Exts. on the aspect of possession. They are Exts. DK, DG and DE. Ext. DK is a copy of an entry from the roznamcha of the year 1965-66 under the date April 1, 1966. The roznamcha entry mentions that possession of 1/2 share was transferred to the appellants by working the plough. That does not indicate delivery of actual possession. The ruznamcha further contains the statement that a proclamation was made by beat of drum that Para and Het Ram were not present at the spot. This statement would repel any delivery of possession to the appellants in the absence of Het Ram and Pura. The ruznamcha was not put to any case of the prosecution witnesses. It does not prove actual and separate possession of the land by the appellants. Ext. DE is an application, dated April 11, 1966, filed by Pura and Het Ram under Order 39 of the Code of Civil Procedure asking for an order prohibiting the defendants from taking possession of the land in dispute. This document also does not prove possession of the land by the appellants. Ext. DG is an application filed by Pura and Het Ram on April 11, 1966, under Section 47 of the Code of Civil Procedure for an order that if possession of the land has been obtained by Mohan and Ranbir the possession should be restored to Pura and Het Ram. There is no positive statement of possession having been taken by the appellants. Het Ram and Pura merely asked for restoration of possession in the event of possession having been taken by the appellants. These documents were also not put to the prosecution witnesses. They were not given an opportunity to deal with the documents. Therefore, these documents cannot be used against the prosecution witnesses.
14. The conclusion on the basis of evidence is that the land was in joint ownership. There was no partition. Allotments are made by partitioning the property into metes and bounds and giving possession of lots in severalty to each co-sharer. In the present case, there was no evidence of separate and exclusive possession by each co-sharer. Mere assertion by the appellants that they were in possession was rightly rejected by the High Court. The defence of possession of land by the appellants was rightly rejected by the High Court. It would also appear that the plea of private defence is unacceptable because it has no basis and on the contrary Het Ram and Pura are in lawful possession of the land.
15. It was also contended on behalf of the appellants that Section 34 of the Indian Penal Code could not be attracted because it was an individual act. The evidence is to the contrary. The finding is based on evidence of common intention. Ram Singh came there armed with a gun. Mohan and Ranbir were armed with gandasas. Ram Singh asked Het Ram and Pura to go out of the field and when Ladhu replied that they would not leave the field Ram Singh threatened and fired a shot with his gun which hit Ladhu. Mohan gave a gandasa blow which hit Pura. Ranbir gave a gandasa blow which hit Pura. The entire evidence proves common intention.
16. Counsel for the appellants invoked the application of Probation of Offenders Act. Sections 4 and 6 of the Act indicate the procedure requiring the court to call for a report from the Probation Officer and consideration of the report and any other information available relating to the character and physical and mental condition of the offender. These facts are of primary importance before the Court can pass an order under the Probation of Offenders Act. This plea cannot be entertained in this Court.
17. This appeal by special leave is under Article 136. There is no question of law. The appeal fails and is dismissed. The appellants will surrender to the bail and serve out the sentences.