1. The petitioner Umed Ali has been convicted under Section 148, Indian Penal Code, and sentenced to undergo three months' rigorous imprisonment and to pay a fine of Eta. 400 or in default to undergo a further period of six months' rigorous imprisonment; the remaining six petitioners have been convtcted under Section 147, Indian Penal Code: the sentences passed upon three of them are the same as the sentence passed upon Umed Ali. The remaining three have been sentenced each to undergo three months' rigorous imprisonment and to pay a fine of Rs. 200 or in default to undergo a farther period of three months' rigorous imprisonment. The Rule called upon the District Magistrate of Faridpore to show cause why the convictions and sentences should not be set aside on the ground that regard being had to the facts found and the circumstances in evidence, the Sessions Judge errad in law in coming to the conclusion that possession of the land in question was with the Khas Mahal authorities and that in consequence the conviction of the petitioners on the charge of rioting as framed could not in law be sustained or why such other or further order should not be made as might seem fib to this Court.
2. The common object of the unlawful assembly of which the petitioners are said to have been members is stated in the charge to have been to cause obstruction to measurement and demarcation of Khas Mehal land by Kanongo Babu Asutosh Das Gupta and Khas Mahal Tahsildar Babu Lalit Mohan Acharjee. The charge assumes as a fact that the land on which the alleged riot took place is land be longing to the Government as a Khas Mahal. The land no doubt forms part of an area shown in the Thak map of 1857 as Government Estate No. 380, Bhattichar Baludhun. The estate is surrounded by lands belonging to the Patpasar Zamindars, of whom the principal present representative appears to be Maijuddin Biswas. The following rough sketch map shows the portion of the land to which the dispute relates.
3. The plot marked D is admittedly a portion of the Government estate. The nest strip of land to the west (C) is also now admitted to be a part of the Gov-ernment estate, C is bounded on the east by the line and on the west by the line Xi(sic), X18. To the west of C there are two plots marked E and W and the occurrence took place on W.
4. Formerly the Government estate appears to have been leased out to the Patpasur Zemindars as Ijaradars. In the year 1873 and the following years some attempt ap-pareatly was made to assess revenue under Act IX of 1347 on the western portion of the Ian; that is on plots C. E and W. Finally, however, that attempt was abandoned and that portion of toe land, C, E and W, remained in the possession of the Patpasur Zemindars, who apparently claimed that it was a part of their own estate Char Durgapur. They even laid claim to the plot marked D and litigated that claim in the Civil Courts. They did not, however, succeed in establishing their title to D.
5. As I have said, they remained in possession of C, E and W and when the Government estate was sattled or resettled in 1895, chat portion, C, E and W, was exctuded from the settlement.
6. In 1907, the whole of the land including plot D was diluviated. In 1911 the land began to re form and an island appeared extending, it is said, from a point in D to a point in E of which the Khas Mahal authorities took possession By 1913 or at the latest by February 1914 the whole of the land had reformed.
7. It is alleged on the side of, the prosecution that in toe year 1913 possession was taken on behalf of the Government with the consent of the Patpasur Maliks or of Maijuddin Biswas of an area which included lands in E and W. ft is further stated that in the years 1912, 1913, 1914 and 1915 the grass growing on the whole of the reformed area was sold by auction by the Khas Mahal authorities and purchased by Maijuddin Biswas.
8. In July 1915 settlement proceedings were commenced by the Khas Mahal Officer, Babu Profulla Chanar Gupta, and one settlement was concluded in April 1916. It is not disputed that this officer excluded the lands in plots E and W from the area which he settled as forming the Government estate.
9. I should also mention that between the years 1904 and 1910 a survey was made of the whole district on the basis of which a Record of Rights was published in 1912.1913. The maps including Exhibit XI prepared by the Settlement Authorities in these years appear to show that the western boundary of the Government estate was the line marked on the sketch map X3, X18. The Records of Right therefore, so far as it goes is in favoar of the claim made by Maijuddin Biswas to the lands in E and W. During the period of the Record of Rights however, the lands had for the most part been under water.
10. In the years 1916 and 1917 there was no sale by the Khas Mahal authorities of the grass grown on E and W. It is not very clear by whom the grass was taken,
11. In September 1916 Babu Profulla Chandra Gupta, the Khas Mehal Officer, was transferred and was succeeded in that post by Babu Brojendra Kumar Gupta. In March 1917 Brojendra Babu discovered that the lands in E and W had been excluded from the settlement made by Profulla Babu. On the Ist April 19l7 he reported the matter to the Collector, Mr. Danlob, who on the 3rd April ordered posession to be taken. Possession was taken on the following day, i.e, the 4th April, by an Amin who perambulated the boundaries, posted bamboos and had a drum beaten. This was done without notice to the Patpasur Zemindars. In June of the same year the Khas Mahal authorities seem to have taken effective possession of the land in E. In July, Brojendra Babu is said to have selected tenants for the lands in W and to have allotted holdings to those tenants; at the time, however, the land in W was more or less under water. On the 11th November an Amin went to plot W to point out the plots allocated by Brojendra Babu to the different tenants. There was another visit paid on the 12th. The riot tools place on the 13th. The lands in W had lain fallow up to then and the question is who was in actual possession of it on the day of the riot.
12. If we assume, without deciding, that at the time of the Thak Survey in 1857 the true title was with the Government, the possession of the Patpasur Zemindars from sometime before 1895 to 1907 would be that of trespassers. When the land was submerged, according to well-settled principles of law, the constructive possession would revert to the true title and it may be that on the re appearance of the land in the year 1913 or a little later actual possession was also with the Government. It is not easy, however, to say who was in actual possession in the years 1916 and 1917. Apparently possession was during these years recovered by or on behalf of the Patpasur Zemindars, and there is at least a doubt whether in the then state of the land they were deprived of the possession so obtained by anything which was done on the 3rd April 1917. The error into which the learned Sessions Judge appears to have fallen in this connection is that he failed sufficiently to appreciate that in a criminal case the burden of proving the charge substantially as drawn lay on the prosecution. He seems to have thought that be had to decide, as in a civil case, on the balance of the evidence whether on the day of the occurrence actual possession lay with the Government or with the Patpasur Zemindars.
13. Regard being had to the condition of the land and the nature of the acts of possession on which the parties rely, the question of possession may on the principle already adverted to depend on the further question in which side the true title resides. That question is not one upon which a definite opinion can be expressed on the materials on the present record. It is eminently a question for the Civil Court to determine with reference to the whole history of the land. That being the position, it appears to me that there is at least considerable doubt whether the prosecution has established that on the date of the occurrence actual possession of the land in plot W lay with the Government,
14. In this connection I may add that no doubt, when it comes to a scramble for land, the Government may be at a disadvantage as compared with a private Zemindar because the representative of the Government cannot, or ought not to, condeacend to the undignified and unprincipled methods which ordinary landowners or their agents sometimes employ. It must be remembered that if the Government is at a disadvantage in this respect, in other respects the Government have advantages which the private Zemindar does not possess. For instance, it is not a very easy thing to prescribe against the Government. In order to make a good title to land against the Government by prescription it is necessary that adverse possession of the land should be held for a period of 60 years.
15. If it is not established affirmatively that the land on which the alleged riot took place (the land in plot W) was in the actual possession of the Government, the charge as alleged is not proved and the petitioners are not guilty of rioting with the common object stated in the charge. It is to that question that the Rule was directed and it is to that question that we confined the arguments before us. In the view we take the petitioners are entitled to an acquittal on the charge as framed. The amount of actual force and violence used by the petitioners appear not to have been great. In the circumstances, therefore, we have not thought it necessary to consider whether any offence other than the offence stated in the charge was committed by them.
16. The result is that the Rule is made absolute and the conviction of the petitioners and the sentences passed upon them are set aside. The fines or so much of them as may have been paid must be refunded.
17. The petitioners will be discharged from their bail bonds.
Shamsul Huda, J.
18. I agree.