Sadasiva Aiyar, J.
1. It appears from the documentary evidence that the first accused obtained a mortgage with possession from one of two undivided brothers in May 1915 (Exhibit J), first accused having been already a mortgagee without possession from both the brothers. The other brother gave a cowle to the complainant more than a year afterwards in June 1916 (Exhibit A). Prima facie, the complainant was the aggressor in trying to take possession of a land which had been mortgaged with possession to 1st accused a year before the complainant's cowle.
2. The Appellate Magistrate refused to go into the question, 'who was in possession of the land in the year preceding the date of offence and up to and on the date of offence.' See Veerappa Naick, In re 40 Ind. Cas. 752 : 8 Cr. Law Rev. 314 : 18 Cri. L. J. 752.
3. I set aside the decision of the Appellate Magistrate and direct that the appeal be re-heard and a fresh decision pronounced after considering the question of possession and if the first accused is found to have been in possession prior to and up to the date of occurrences, whether more force than was legally permissible was used by the accused or any of them in maintaining that possession in the exercise of the right of self-defence against the complainant and his party. The accused will continue released on the same bail till disposal of the appeal.