Bedabrata Mookerjee, J.
1. This Rule is directed against an order of Sri J. N. Roy, Magistrate, 1st Class, Jhargram, dated 9-8-1954, by which the petitioners were convicted under Sections 147 and 427 of the Indian Penal Code. Each of the petitioners was sentenced under Section 427 to pay a fine of Rs. 30/-, in default to suffer rigorous imprisonment for one month. No separate sentence was passed under Section 147, Penal Code.
2. An application was made before the learned Sessions Judge of Midnapore for a reference to this Court with a recommendation that the convictions of and the sentences imposed upon the petitioners be set aside but the learned Judge declined to interfere. Thereafter the petitioners applied to this Court and obtained the present Rule,
3. The facts shortly stated are that the complainant had taken settlement of about 12.50 acres of land comprised in C. S. Plot No. 3/702 and 4/703 under interest No. 1 of mouza Rajpahari, Police Station Nayagrarn, from the Nawab Estate belonging to the Murshidabad House. It was stated that a salami was paid and an annual rent of Rs. 12-2-0 had been fixed. Settlement, thus obtained, was in favour of one Aghore Chandra Jana and the complainant in this case. The Prosecution case is that after having obtained the settlement, some time in March 1952 the complainant took possession of the land and in July, 1953, a portion of the land was brought under plough and ground-nut seed were sown. Just a few days thereafter, the allegation is, when the seeds were germinating, the petitioners with several others came up to the land, ploughed the field despite protest made on behalf of the complainant. The result of the ploughing up of the land by the petitioners was damage to the germinating seeds which caused a loss of about Rs. 200/- to the complainant. With these allegations the complainant came to Court and examined several witnesses in support of the case which he made.
4. To the two charges under Sections 147 and 427, Penal Code, that were framed in the case the petitioners pleaded not guilty. Their defence appears to be that the disputed land was in the possession of the villagers including the petitioners. 'The river having eroded, a part of the land went into the river bed and it was lost until some time later that it was reformed in the year 1350 B. S., whereafter the villagers possessed the land and brought it under cultivation. In support of the case which the petitioners made two witnesses were examined and they gave evidence to prove that actual possession of the land in question was with the villagers who had been cultivating the land and growing crops on it.
5. The learned Magistrate, however, believed the Prosecution case and found that the petitioners having come up on the land with lathis etc., and ploughed it up despite protest on behalf of the complainant, they must be held to have been guilty of rioting under Section 147, Penal Code, and that by causing damage to the seedlings they were further guilty under Section 427 of the Code.
6. The main evidence in the case is that in the year 1952 the complainant and Aghore were inducted upon the land by the Zemindar, namely, the Murshidabad Estate. The deed of settlement as also the rent receipts purporting to show payment of rent on account of char lands including the disputed plot were produced at the trial. The Prosecution relied further upon the fact that an attempt was made by one of the defence witnesses to obtain settlement of the land but 'settlement was refused to him which left him discomfited and the complainant and another were given the settlement instead. The learned Magistrate has referred to the evidence mainly of three witnesses being P. Ws. 2, 3 and 5 for the purpose of showing that the land in question was cultivated just a few days before the date of the alleged occurrence.
7. It is quite clear from the evidence in the case as also from the findings arrived at by the learned Magistrate that, the only act of possession which was alleged to have been exercised by the 'complainant party was the act by which the land was said to have been cultivated three or four days prior to the date of the occurrence. There are, of course, the two documents showing that the char including the disputed land had been settle'd with the complainant and another named Aghore. It is well known that in cases of this kind where on account of erosion and subsequent reformation disputes and differences do arise between prospective tenants the party which succeeds in obtaining settlement from the Zemindar gets a whiphand in the matter in the sense that he has an obvious point in his favour in the shape of a document conferring title. But the most material consideration in such case is the question of actual physical possession. Documentary evidence of title of such recent date cannot in my view afford a safe basis for the purpose of finding persons guilty of charges relating to possession of such lands. It is obvious that the complainant did not even pretend to put his claim to actual possession higher than that he cultivated the land just a few days prior to the date of the alleged damage by the petitioners. It was not the case of the complainant that he had been for any length of time, however short, exercising acts of possession in respect of the disputed land. The only circumstances in his favour are therefore -- first, the deed of settlement and secondly, the oral evidence furnished by the testimony of some of the witnesses who deposed to the effect that the complainant and his men had ploughed up the land and sowed upon it three or four days prior to the date ot occurrence. In this state of the evidence which discloses just a single, fugitive act of possession it can never be safe to hold that the case of actual possession attempted to be proved by means of such evidence has been established and consequently a conviction for mischief or for rioting cannot be sustained in such circumstances against persons whose case is that they have continuously been in possession of the land in dispute.
8. I have been taken through a considerable part of the evidence in the case by learned Advocates appearing on both sides; but I am not in a position to say, in view of the evidence, that the case of actual physical possession of the disputed land has been established beyond doubt in favour of the complainant party. Add to that the circumstance furnished by the testimony of two defence witnesses who made a case of continued possession of the disputed land. Mr. Sen appearing on behalf of the State has argued that such possession will not be of any avail unless it is supported by evidence of good faith. The only hint of bad faith that can possibly be found in the case is that although some of the petitioners' party had attempted to obtain a settlement, they failed and that the complainant appeared to be the more favoured party who obtained it from the Zemindar. I cannot think that that by itself would be enough to show that the petitioners had never been in possession of the land in dispute or that they were not in possession on the date of the occurrence. Failure to get settlement will not necessarily imply that those people who failed to get it, will quietly walk out of the land.
This position becomes all the more important in view of the fact that the disputed land forms part of a char the emergence of which is often a fertile source of dispute between persons quarrelling over the possession of such land. There is evidence further to indicate that the petitioners have lands quite close to the disputed land, Their lands may not be contiguous since the evidence indicates that there is a khal which divides the land of the petitioners from the disputed land. Nevertheless, the evidence taken as a whole does not seem to exclude the possibility of the petitioners having acted in a bona fide belief that they had a right to go upon the land of which they claimed to have been in continued possession. A single, casual act of possession by the complainant of which the evidence speaks cannot possibly, in a case of this kind, be safely relied upon as furnishing a firm foundation for a finding of possession and unless actual possession has been clearly established, it is impossible to hold that the charges of rioting or of mischief could he brought home to the petitioners.
9. I think that in the interest of justice the orderof conviction and sentence has to be interferedwith. I accordingly make the Rule absolute andset aside the convictions of and the sentences passed on the petitioners. The fines, if paid, will berefunded.