Ambika Thakur and Others vs Emperor

The appellants have been convicted by the Additional Sessions Judge of Shahabad and sentenced as follows:

1, Ambika Thakur Oneandahalf years'' rigorous imprisonment u/s 147, I.P.C. 2. Eamprasad Thakur; 3. Sheoprasad Thakur; 4. Nawab Thakur; One year''s rigorous 5. Kuer Thakur; imprisonment under 6. Nagina Pandey; Section 117, I.P.C. 7. Sheodahin Thakur; 8. Maina Thakur; 9. Beni Madho Thakur; 10. Lalchand Thakur; 11. Jagarnath Thakur; 12. Chhabila Thakur; Oneand a halfyears'' 13. Kawal Thakur alias rigorous imprisonment Ramkawal Thakur; u/s 148, I.P.C. 14. Chaman Thakur; 15. Rajdayal Thakur; 16. Jamuna Prasad Thakur;

Seven more persons tried along with the appellants were acquitted. Lalohand Thakur (No. 10 above) was also charged u/s 302, I.P.C., with causing the death of one Ramnarain, and the remaining appellants u/s 302/149, I.P.C., in respect of that murder. They were acquitted of these charges. Rajdayal Thakur who was further charged u/s 324, I.P.C., with causing simple hurt by a dangerous weapon to the same Ramnarain was acquitted of this charge. Beni Madho Thakur, Kawal Thakur alias Ram Kawal Thakur, Jamuna Prasad Thakur, Jagannath Thakur and Chaman Thakur were similarly charged u/s 324, I.P.C., the first three with causing simple hurt by dangerous weapons to one Lalmohar Rai and the last two to one Ujagir Rai. All of them were acquitted of this charge.

One of the accused, Guraman Ahir (acquitted), was charged (among other Sections) u/s 436, I.P.C., (arson) with setting fire to a hut, and Ambika Thakur and Rajdayal Thakur were charged with abetting that offence u/s 436/114, I.P.C. These charges were withdrawn during the trial. The trial commenced with five gentlemen as jurors in respect of the charges relating to arson and as assessors in respect of the remaining charges. "When the charge of arson was withdrawn, the trial proceeded with the same gentlemen as assessors only. All of them were of opinion that the accused were not guilty of any offence. The first informant, Ramkewal Rai, has presented an application in revision praying that the appellants be convicted of the offences of which they were acquitted by the learned Additional Sessions Judge or, in the alternative, that their sentences be enhanced. We postponed the passing of orders on this application till the appeal had been heard. Sir Manmatha Nath Mukherji who appeared on behalf of the appellants intimated to us that in case we decided to issue notice in the revision application, he would accept it so as to make it unnecessary to send out notices to the appellants personally. After the conclusion of the hearing of the appeal we called upon Mr. Naqui Imam, who was then appearing on behalf of the appellants, to take notice of the revision application and show cause, if any, why it should not be allowed. We heard Mr. Naqui Imam in this connexion and will deal with that matter in this judgment after disposing of the appeal itself. The occurrence in question took place on the morning of 5th February 1938 over the possession of some diara lands which had alluviated from the river Ganges. Such occurrences are not uncommon; when a large area of land alluviates, there is generally a struggle for possession, and all who can by any stretch of imagination do so lay claims to the land and riots attended with murder often take place. The present is one of a series of such riots between the parties.

Before we deal with the facts of the riot, it is necessary to describe the position of the disputed land. In doing so, we must clear up some confusion (which has been noticed before now) in the directions, (north, east, south, west) given by the witnesses and mentioned in a number of documents produced in the case. The general course of the river Ganges in the district of Shahabad is from west to east along the northern border of the district, but at the particular place where the present occurrence took place the Ganges has taken a turn, and runs from north to south on the east of the lands involved in the case. Notwithstanding this, the Ganges is locally regarded as lying to the north; and the consequent shift is reproduced both in the oral and in the documentary evidence, the popular directions being 90 degrees ahead of the true or magnetic directions. The learned Additional Sessions Judge in his judgment has used the popular directions, with the result that his north is the magnetic east, his east the magnetic south, his south the magnetic west and his west the magnetic north. We prefer to use the magnetic directions, which were followed in the cadastral survey map and are thus more convenient for our purposes. There are four mauzas lying one after another from north to south, to the west of the Ganges in this locality. The northern most is Rajapur, a Government Khas Mahal, south of it is Dubha, next comes Gangauli, and the southernmost is Kharatanr, the last three belonging to the Maharaja of Dumraon. Each of these four mauzas has its mal lands, that is, lands which appertained to it from the beginning and, so far as Dubha, Gangauli and Kharatanr are concerned, were permanently settled with the Maharaja of Dumraon. Each of them also has taufir (accreted) lands which have become attached to the main lands of the mauza by alluvion. A portion of these taufir lands was surveyed at the time of the cadastral survey in 1908-09, doubtless because it had by then become firm and was under cultivation. The rest of the taufir lands were not surveyed then, and are known as "unsurveyed," though the lands of Dubha taufir have been surveyed in 1935, and a Eecord of Eights prepared. It is the taufir land of Dubha which is the subject-matter of the riot in the present case, that is, the land which accreted to the main lands of Mauza Dubha and was not surveyed in 1908-09. East of mauzas Dubha, Gangauli and Kharatanr, we have Shivpur (or Sheopur) Diara lying in the District of Ballia in the United Provinces, some of the litigation, to which we shall have to refer, has thus been in that district.

The prosecution case is that under leases granted by the Maharaja of Dumraon 10 tenants of village Rajapur were in possession of all the unsurveyed portion of the Dubha taufir lands with the exception of 77 bighas (which have admittedly been in the possession of Lalmohar, deceased, father of the appellant Ambika and unele of the appellant Nawab). They had grown crops on the land and erected a hut for the accommodation of those who were set to guard the crops. On the morning of 5th February 1938, about half a ghari after sunrise, some of the lessees and their relations and partners, in all 11 men, were in (the said hut, when they heard shouts of "Mahabir ki jai." They came out of the hut and saw a mob of about 100 (including the appellants) with lathis and spears, at a distance of about 10 bans on the south (magnetic west) of the hut. The appellant Ambika was riding a mare and had a whip in his hand. He and the appellant Rajdayal ordered assault and burning of the hut. All the occupants of the hut fled away, but Ramnarain, Lalmohan (P.W. 2) and Ujagir (P.W. 6) were surrounded. Ramnarain was hit in the chest with a spear by the appellant Lai Chand and was killed. Lalmohar fell down unconscious, having been hit with spears by Eamkawal, Beni Madho and. Jamuna, and with a lathi by Shiv Prasad. Ujagir also fell down senseless, having been hit by the spears of Jagannath, Chhabila and Chaman and by a lathi of Ramprasad. Thereafter Jurawan (acquitted) set fire to the hut. Then the mob proceeded towards Gangauli, the village where all the appellants lived. Ramnarain was removed from the place where he had fallen. Three cots were procured from the basti of Rajapur taufir; and on them the dead body of Ramnarain and the two injured persons were carried towards the Dumraon police station 12 miles away. When the party reached a tank in Dumraon, they met the Sub-Inspector (P.W. 38) who was on his way to the place of occurrence on receipt of some information from the chaukidar of Gangauli. At that very spot, a short distance from the police station, the Sub-Inspector drew up the first information report on the statement of Ramkewal, one of the leasholders (P.W. 1). This was at about mid-day (12.15). The body of Ramnarain was sent for post-mortem examination to Buxar, and the injured persons were also sent there for medical examination and treatment. After doing some preliminary investigation the Sub-Inspector deputed constables Agin Singh (P.W. 2), Muhammad Kifait (P.W. 17) and Pahlu Singh (P.W. 18) to the place of occurrence to keep a watch on it. He himself reached the spot at night. After investigation the accused persons were sent up for their trial.

The defence is that all the Dubha taufir lands had all along been in the possession of Lalmohar Thakur (now dead) and are now in the possession of the members of his family. No part of them is directly in possession of the Maharaja of Dumraon or of any of his settlement holders. The appellants denied taking part in any occurrence whatsoever. Their case was that in the early hours of the morning of the day in question, several hours before the time of the occurrence given by the prosecution, an attempt was made by Ramnarayan and other settlement-holders to put up a hut as a proof of their possession of the lands, and Gangauli guards (rakhwaras) who lived in another hut on the 77 bigha block, admittedly in the possession of the Gangauli Thakurs ''Lalmohar''s family,'' saw this and went up to oppose, and a scuffle ensued in which some persons were injured at the hands of the rakhwaras and Ramnarayan might have received his fatal injury. In other words, the appellants denied the possession of the other side and claimed to be in possession themselves and denied that there was any hut in, existence at about the time of the occurrence and said that they had heard of an attempt to put up a new hut which was resisted by the men set to guard their crops and living in a hut in the 77 bigha block.

Both the parties have adduced documentary evidence in connexion with the previous litigation in order to prove their respective possession. Sir Manmatha Nath Mukherji, who appeared on behalf of the appellants, has addressed us at great length and has asked us to hold that whatever might have been the decisions of the Courts from time to time (and we will refer to them later), the deceased Lalmohar and the members of his family had in actual fact been in uninterrupted possession of all the Dubha taufir lands up to the date of the present occurrence. In our opinion, this question of possession is important only for the purpose of appreciating the evidence of the occurrence as deposed to by the prosecution witnesses. If the prosecution case is believed, there is no case of a right of private defence, and the question of possession is not very important in relation to the charges framed against the appellants. Sir Manmatha Mukherji however contended that one of the common objects mentioned in the charges of rioting being "by means of criminal force to Ramnarain Rai and his party to take possession of the lands in Dubha taufir, police station Dumraon, held under the pattas granted by the Maharaja of Dumraon," these charges must fail if the prosecution fail to prove their possession. But there is another common object mentioned in the charge, namely "to assault Ramnarain Rai and others of the same party," which has little to do with actual possession. But the defence assertion of actual possession in the face of repeated decisions adverse to these Thakurs of Gangauli implies lawlessness, and we propose to examine the question of possession in some detail, as we have come to the conclusion that it is high time they were bound over to keep the peace.

It is however not necessary for the purposes of even the first part of the charge to decide whether all the unsurveyed lands of Dubha taufir were in the possession of the prosecution party on the day of occurrence. If they were in possession of some substantial area out of those lands, and the appellants went there in force to dispossess them, this part of the charges would be brought home to them. The learned Sessions Judge has carefully detailed the previous litigation about these lands. It is therefore not necessary for us to give more than a short history in order to determine the question of possession. (After giving the history and certain evidence regarding possession the judgment proceeded.) The facts stated above practically exhaust the documentary evidence of possession. The following appears clear from them:

The Thakurs of Gangauli were originally raiyats of lands in the Dubha as well as the Gangauli and Kharatanr taufirs. Their names were recorded as such in the Diara Survey Record of 1892. This is abundantly clear from the judgment (Ex. R) of the suit instituted by the Maharaja against the Thakurs of Gangauli for ejecting them from the 77 bighas of land. In this judgment reference has been made to the plaint of the Maharaja in Title Suit No. 193 of 1916 against the Shivpur Babus and to his written statements in Title Suit No. 247 of 1911 which Lalmohar had brought against the Shivpur Babus for recovery of 244 bighas of land. In both of them the raiyati interest of Lalmohar and others in the Dubha taufir lands was admitted. The lands must have gone under water for some time thereafter, and most of them were not fit for cultivation during the cadastral survey of 1908.09 as only 22.06 acres of taufir lands of Dubha were then cadastrally surveyed, and the rest only dealt with topographically. But some portion of these unsurveyed lands would appear to have become fit for cultivation as there was a scramble for possession between the old raiyats, the Thakurs of Gangauli, on the one hand and the Babus of Shivpur on the other, the latter claiming the lands as re.formation in situ of their old Shivpur lands in the district of Ballia. In this fight the Thakurs of Gangauli lost all the Dubha taufir lands and the Babus of Shivpur got possession of them on 30th November 1913, after the civil suit of Lalmohar and others against them was dismissed by the Appellate Court. The Shivpur Babus not only suooeeded in dispossessing the Gangauli Thakurs from the Dubha taufir lands, but by an order u/s 145, Criminal P.C., passed by the Magistrate of Buxar, they gob possession of the taufir lands of Gangauli and Kharatanr as well. This was the situation when the Maharaja of Dumraon brought his title suit for recovery of possession of all the taufir lands of the three villages. Regarding the 244 highas which, as we have said, later became known as 258 bighas, the Maharaja claimed khas possession as his raiyats Lalmohar and others had lost not only their possession but also whatever rights they had. Regarding the Gangauli and Kharatanr lands in which his raiyats had not lost their rights, he claimed possession through them. The suit of the Maharaja was rein, forced by a suit on behalf of the Gangauli Thakurs in respect of Gangauli and Kharatanr lands only. Both the suits, as we have said, were decreed, and possession was given to the Maharaja according to his prayer on 30th April 1925.

Lalmohar and others who had lost all the taufir lands of the three villages and subsequently recovered possession of Gangauli and Kharatanr lands did not take any settlement from the Maharaja of the Dubha taufir lands which they had completely lost'' and which were only recovered through his efforts, but attempted to take possession of the lands by sheer force. In the meantime Lalmohar was declared to be in possession of a block of 77 bighas in another part of the Dubha taufir which was at that time believed to be a part of Rajapur; but this was in a domestic dispute between the members of his own family. Lalmohar then attempted to obtain possession of the 244 or 258 bighas of land which he had altogether lost, and this resulted in the first 145 Criminal Procedure Code case decided by the Sub-divisional Officer, Rai Sahib Sukhdeo Narayan, on 1st ''September 1931. This Magistrate declared the Maharaja to be in possession of 258 bighas and Lalmohar Thakur in possession of the 77 bighas, and in order to decide the question of possession for our purposes we propose to start from this judgment of 1931. We may recall the following dates :

Decision of the first 115 case ... 1st September 1931. Lands attached in the second 145 1st August Cr.P.C. case ... 1933. Lands released from attach- 11th June ment ... 1936. Present occurrence ... 5th February 1938.

The 335 bighas of land which formed the subject-matter of dispute in the 145 Criminal Procedure Code case decided by Rai Sahib Sukhdeo Narayan in 1931 lay in two blocks one of 177 bighas north of a chhaur which ran east to west (magnetic) and the other of 158 bighas south of it. Lalmohar claimed to be in possession of all this area of 77 bighas as the land over which his possession was maintained in the 145 Criminal Procedure Code case proceeding between him and Dadul Thakur, of 100 bighas as an accretion to that block and of 158 bighas as having all along been in hid possession. We have said before that the learned Magistrate declared the possession of Lalmohur over the 77 bighas and of the Maharaja over the 100 bighas east of it and the 158 bighas south of the chhaur. He held that these 258 bighas were in fact the 244 bighas, of which the Maharaja had gob khas possession from the Civil Court in his suit against the Shivpur Babus. The building Sub-Inspeotor, Abdus Shakur (P.W. 13), located signs of the destroyed hub and the place where Ujagar Rai and Lalmohar Rai were injured in survey plot No. 349 and the place where Ramnarain was killed and where his dead body was found in plot No. 350.

According to the survey map prepared during the settlement operations plot No. 350 is within the 100 bighas the possession of which was declared to be with the Maharaja and plot No. 349 is just outside that area but within the lands found by the Settlement authorities to be accretions to the 258 bighas. Neither of the two plots is in the 77 bighas the possession of which had been declared in favour of Lalmohar. The Records of Bights have been finally published and must be presumed to be correct unless the contrary is proved by evidence adduced. There is no such evidence. It is thus clear that the place where the occurrence book place and the lands near about it are unconnected with Lalmohar''s block of 77 bighas but are either part of or connected with the area to the possession of which the Maharaja was declared to be entitled as far back as 1931, Lalmohar and his party being on that occasion prohibited from interfering with the Maharaja''s possession. That order is in full force bill now.

It was however urged before us as in the lower Court that the lands of which possession was declared in favour of the Maharaja were unidentifiable and that the order of 1931 u/s 145 did not apply to any particular plot of land that the Maharaja and his lessees did not know the lands and therefore were never in possession of them and that Lalmohar and others continued in possession of them in spite of the order. This we cannot accept at all. It does not lie in the mouth of Lalmohar or his descendants and relatives to say that the 258 bighas of the Maharaja was unknown to them. These lands are the same as Lalmohar had lost in the 145 Criminal P.C. case against the Babus of Shivpur in the Court of the Magistrate of Ballia though at that time they were known as 244 bighas. It was for these very lands that Lalmohar had brought his civil suit against the Shivpur Babus and lost. These very lands were also included in the subject-matter of the 145 Criminal P.C. case before the Magistrate of Buxar (Rai Sahib Sukhdeo Narayan). Lalmohar never alleged in that case that these lands were unidenti. fiable. He filed a written statement and claimed 100 bighas of them as accretions to his 77 bighas and also claimed possession of the remaining 158 bighas which lay just north of the surveyed Dubha taufir lands. He hunself supplied the boundaries of the disputed lands. In his revision application also to this Court he asserted his possession and did not allege that the lands were unknown.

Stress is laid on behalf of the appellants on an order of this Court passed by James J, in the second 145 Criminal P.C. case in which it was ordered that the lands should be identified and on the fact that when in pursuance of this order anamin and a kanungo were deputed to identify the land they were unable to do so. But this was due to the fact that full materials were not placed before the Court. Without permanent marks for miles and miles as happens in diaras it is not easy to locate a particular plot unless it can be fixed from a scientifically prepared survey map or unless scientific measurements from fixed points far away from the scene are available; and the work is always difficult and requires skill and much labour. But in the present case as has been pointed out by the Settlement Authorities who decided the dispute at the attestation stage and heard the objections u/s 103A, Ben. Ten. Act, there was no difficulty in finding out at least the 100 bighas north of the chhaur. The block of 77 bighas in the possession of Lalmohur was all along known to him and his family. He bad been declared to be in possession of it in the proceeding u/s 145, Criminal P.C., against Dadul Thakur and had also won in Dadul''s civil suit. His possession over this land was also declared by Rai Sahib Sukhdeo Narayan. With this block known, there could be no difficulty in finding out the 100 bighas which as is clear from the judgment of Rai Sahib Sukhedeo Narayan lay just east of it; and it was thus that when, survey and settlement was ordered by the Government, the officers of that Department had no difficulty in locating the area of 100 bighas. We are not concerned with whether others knew this area or not. Lalmohar knew it all along, and Rai Sahib Sukhdeo Narayan''s order prohibited him from going upon it.

Sir Manmatha Nath Mukherji has however argued that the Maharaja and his lessees did not know the lands as they would otherwise have been able to point them out to the various officers. We are not prepared to accept this argument. In the second 145 Criminal P.C. case it was strenuously contended on behalf of the Maharaja that the area, for which the proceeding was started, included the 258 bighas of which possession had already been declared in his favour. It appears that Lalmohar held a much stronger position in the locality so far as force was concerned, and that the terrified lessees of the Maharaja were probably unable to point out the lands with exactitude as there were no ridges and the extent of the plots could not be ascertained without measurements which, they were in a position to carry out. Great stress has been laid on the somewhat confused boundaries given by Rai Sahib Sukhdeo Narayan at the end of his judgment though he had very clearly specified the lands of the two blocks of 177 bighas and 158 bighas earlier in that judgment. As has been clearly pointed out by the officers of the Settlement Department, this confusion was due to the fact that at some places he gave the popular directions and at others the magnetic directions. However, as we have indicated above, for the purposes of this case, we are not really concerned with all the lands in dispute between the parties.

It is quite clear from the survey map and the location of the place of occurrence by the building Sub-Inspector that the occurrence took place away from Lalmohar''s 77 bighas and for the most part within the 100 bighas the possession of which was declared by the Magistrate to have been, with the Maharaja so far back as 1931; and this is sufficient for our purposes.

Sir Manmatha Nath Mukherji, relying upon map No. I attached to the decision of the attestation officer, contended that according to the identification of the lands by the Maharaja and his lessees the place of occurrence is outside the 258 bighas. He also contended that the survey map is wrong as the position of the 158 bighas south of the chhaur differs from its position as included in the earlier map of 244 bighas prepared for the Maharaja''s suit against the Shivpur Babus. Map No. I is a comparative map and shows the positions of the land according to the later claim of the Maharaja and his lessees and also according to the earlier map. When the suits of the Maharaja and of Lalmohar and others against the Shivpur Babus were pending in the Civil Court, one Misri Lall, Amin, was deputed by the Court to measure the lands. He prepared a map which is depicted on map No. I attached to the judgment of the attestation officer. This map has been found to be inaccurate by the officers of the Settlement Department who carried out a complete survey of the locality. Misri Lall has shown the 158 bighas of land just to the south of the 100 bighas, the two together forming one trapezium, while according to the Settlement Department the 158 bighas is south of the 77 bighas.

The two blocks of 100 and 158 bighas are shaped like two trapeziums, the south-western corner of the former meeting the north-eastern corner of the latter. We accept the findings of the Settlement Department, not only because their (map and) records were finally published and carry a statutory presumption of correctness, but also because the reasons given by those officers for their conclusions are sound. They examined the judgment of Rai Sahib Sukhdeo Narayan, and from the boundaries given there, they found that the 158 bighas was to the south of the 77 bighas of Lalmohar because the southern boundary of the 158 bighas was the surveyed Dubha taufir lands, though this was ignored in the map of Misri Lall who made the 258 bighas into one compact block.

Sir Manmatha Nath Mukherji then argued, after placing this comparative map over the finally published map, that according to the claim of the Maharaja, as put forward before the Settlement Department, the place of occurrence is outside the 258 bighas. This is so, but the reason is that the Maharaja claimed on the basis of a wrong trijunction and thus included some Rajapur taufir land in Dubha Taufir, with the result that according to this claim the north-eastern boundary of Dubha taufir was shifted towards the north-west with a, corresponding shift of the 77 bighas of Lalmohar and consequently of the 100 bighas also. But, the officers of the Settlement Department carefully went into the matter and found that the boundary of Dubha Taufir commenced somewhat north of the lands pointed out by the Maharaja. These mistakes are very common in diaras where, as we have said before, no permanent marks are available at hand and the fields have no ridges.

Sir Manmatha Nath''s argument however was that as the Maharaja and his lessees made a mistake in pointing out the boundary of Dubha taufir, they did not really know the lands of which the posses, sion had been held in 1931 to be with the Maharaja. This must be conceded, but as we have already pointed out, their ignorance of the exact position correct down to a bighas is by no means inconsistent with their knowledge of a very large part of the locality with the additional areas that were being thrown up by the Ganges. Even if we take it that the place of occurrence is outside the land which the Maharaja and his lessees know to be within the land of which the possession was declared to be with them, this makes no difference on the charge of rioting. The place of occurrence, though it will be outside the 100 bighas, will still be in lands accreted to it and beyond any olaim of accretion open to Lalmohar and others, for the latter''s blook of 77 bighas is surrounded on all sides by the lands of other people. On the north of it lies village Rajapur, wherever the bound, ary between them may be. On the east is the 100 bighas block of Dubha taufir over which the possession of the Maharaja was maintained, and as the Settlement Department found, the 77-bigha block has on the south the 158 bighas the possession of which had been found by the Magistrate to be with the Maharaja. Any accretions on the east or south would thus go not to Lalmohar''s 77 bighas but to the 100 or 158 bighas of the Maharaja and must there, fore be presumed to be in his possession and in that of his lessees.

But we have definitely come to the conclusion that the place of occurrence and the lands near about it on which crops stood at the time are within the 100 bighas of which the possession was declared to be with the Maharaja, Lalmohar and others being prohibited by the order of 1931 from interfering with this possession.

In Dinobundoo Chowdhrani v. Brojo Mohoni Chowdharni (10902) 29 Cal. 187 their Lordships of the Judicial Committee held that though an order u/s 145, Criminal P.C., confers no title, the fact of possession remains and the person in possession can only be evicted by a person who can prove a better title to possession himself. Assuming therefore that after the order of 1931 Lalmohar and others were able on some occasions either surreptitiously or forcibly to cultivate the lands, these would be no more than isolated acts of trespass and offences punishable u/s 188, I.P.C., but not acts amounting to the dispossession of the other side and constituting the juridical possession of the offenders unless the other side refrain from asserting their possession for a sufficiently long period and give up the protection of the order u/s 145 in their favour. In our opinion the possession of the party which succeeds in proceedings u/s 145, Criminal P.C., cannot be put an end to by the unsuccessful party by mere violence or surreptitious invasion.

Sir Manmatha Nath Mukherji however drew our attention to the case in Rakhal Douli and Another Vs. Makham Lal Ghose, in support of the proposition that an order u/s 145, Criminal P.C., is only a piece of evidence to be taken into consideration when the question of possession arises, between the parties on a subsequent occasion and that though it would go to show that the party in whose favour it was passed was in possession on the date of the order, it is open to the other party to prove that, in spite of the order, he was actually in possession or regained possession. In that case the party in whose favour an order u/s 145, Criminal P.C., had been passed prosecuted the other party for the removal of crops. The trial Court held the complainant to be in possession not only on the basis of the order u/s 145, Criminal P.C., but also on the evidence in the case. On appeal, the Additional Sessions Judge declined to go into the evidence of possession and maintained the conviction on the basis of the order u/s 145, Criminal P.C. Cuming J. was of opinion that the question of actual possession ought to have been gone into, and accordingly ordered a remand, observing that an order u/s 145 was merely a piece of evidence to be taken into consideration in determining who is in possession. This judgment of Cuming J. appears to have been given in Court without much consultation with his colleague Graham J. who on that date observed as follows:

With great respect for my learned brother''s opinion as to the effect of the order u/s 145, Criminal P.C., I feel at present some doubt upon the point. I propose therefore to reserve my judgment. As Monday and Tuesday next will be holidays I propose to deliver my judgment on Wednesday next.

This doubt of the learned Judge continued, but as his colleague wanted to remand the appeal for rehearing, Graham J. did not stand in the way and said as follows: I have further considered this case and speaking for myself, I must confess that I feel considerable doubt as to the effect of the order u/s 145, Criminal P.C., and as to whether in all the circumstances the possession claimed by the accused in this case can be said to have been lawful possession, or possession which the Court could in any way recognize as a defence to the charges. As the order which my learned brother proposes to make however is to send the case back for rehearing the appeal, and as it appears from the judgment of the trial Court that there is evidence as to possession apart from the order u/s 145, Criminal P.C., I do not feel disposed to deliver a dissenting judgment, and I concur in the order which has been made.

With all respect to Cuming J. we are unable to agree in his view of an order u/s 145. The whole object of the Section is to stop a breach of the peace by deciding which party is to remain on the land and which party is to seek his remedy in the Civil Court. Breaches of the peace will continue, and the object of the Legislature will be frustrated if the party who has, on the finding that he is not in possession, been forbidden to disturb the possession of the successful party until eviction in due course of law, is allowed to interfere with the possession of the successful party and to plead once more that whatever the order might have been, he is still in possession or has been able to regain possession by force, and thus either compel the sue cessful party to go to the Civil Court or to coerce a Magistrate to proceed again u/s 145, Criminal P.C. This will be a definite encouragement to disobedience of orders under the Section.

There has been some difference of opinion as to whether once the possession of a party has been declared u/s 145, Criminal P.C., a second proceeding under the Section is permissible. It was held by Jwala Pragad J. in Raghunandan Pandey v. Kishin Mohan Singh A.I.R (1922) . Pat. 210 that an order u/s 145, Criminal P.C., is binding on every, body, whether he was a party to the proceeding or not, and that a Magistrate has no jurisdiction to start a second proceeding. A similar view was taken by Wort J. in Jainath Pati Vs. Ramlakhan Prasad and Others, . It was however held by one of us in Indradeo Singh v. Keso Singh A.I.R (1938) . Pat. 1 that a Magistrate has jurisdiction to start a fresh proceeding, but whether he should do so or not will depend upon the circumstances. In the last mentioned case, the previous proceeding u/s 145, Criminal P.C., was between one Indradeo Singh as the first party and the servants of the junior Rani of Deo as the second party, and the former was declared to be entitled to possession. Then there was a second proceeding u/s 145, Criminal P.C., between three parties. The junior Rani and her servants were one party, the senior Rani another and Indradeo the third party. Indradeo was ordered not to go over the land in dispute. The District Magistrate of Gaya referred the case to this Court, and it was held that the proceeding was not without jurisdiction.

Though both of us agree in the view taken in this last case, the general principle which we have enunciated above remains the same. A third party, not bound by the order in a proceeding under the Section is in a different position from a party who has been definitely prohibited from disturbing the possession of the successful party. It may also be that the position of the parties to a Section 145 proceeding has changed since the passing of order under the Section. For instance, if in a proceeding under the Section, A was prohibited from interfering with the possession of B who was held to foe in possession, and A afterwards comes forward with the allegation that he has since then obtained possession under, say, a lease or a purchase from B, this may be a good ground for the Magistrate to start a second 145 Criminal Procedure Code proceeding in case there be apprehension of a breach of the peace. But the party prohibited from interfering with the possession of another party cannot, in our opinion, be heard to say against that party that he has disobeyed the order and has thus been able to retain or obtain possession. To allow such a plea will be to defeat the object of the Legislature in enacting Section 145, Criminal P.C. There will be no end to disputes and apprehensions of breach of the peace which the Section is designed to stop.

In the present case there has been no change in the position of the parties since the order of 1931, and the contention of the defence comes to this, that they ignored the order of the Magistrate passed in 1931 and in spite of it continued in possession, and that we should find their actual possession. This, in our opinion, cannot be allowed. Let us however see how far the allegation of the defence that in spite of the order u/s 145, they continued in possession of all the Dubha taufir lands is true. (Their Lordships then examined certain evidence and concluded.) To sum up, our conclusions are that the order u/s 145, Criminal P.C., passed by Rai Sahib Sukhdeo Narayan in 1931 is still in force and by virtue of that order, (the Maharaja, and thereafter his lessees, mast have been and in any case must be held to have been in possession of at least the 258 bighas of land which formed part of the subject-matter of that proceeding. Out of this area, a block of 100 bighas was always easily identifiable on account of its contiguity to the 77 bighas block in the unquestioned possession of the appellants and the members of their family. The situation of this 77 bigha block was neither doubtful nor in dispute; and therefore there could be no real difficulty in locating the 100 bighas at least which lay just east. Since the order of Rai Sahib Sukhdeo Narain in September 1931, excluding the period when the lands were under attachment, the lessees of the Maharaja must be in possession.

It is true that occasionally the Gangauli Thakurs (the appellants'' party) were able to disturb their possession. In one year they looted the crops. In the cultivation season of 1937-38 they must, in spite of the denials of the prosecution, have cultivated some portion of the lands. But we are satisfied that a large area in the neighbourhood of the 77 bighas was actually cultivated and sown by the prosecution party; and the present occurrence took place in respect of it. The documentary evidence, the decrees of the Civil Courts and the orders of the Criminal Courts are in favour of the prosecution, and last but not least, there is the statutory presumption of correctness attaching to the Record of Rights in their favour, which has not been rebutted. This disposes of the question of possession, which was very elaborately argued before us by Sir Manmatha Nath Mukherji.

Comparatively little argument has been addressed to us on the question of the occurrence itself. The principal comments made on this part of the prosecution story were: that the hut alleged by the prose, cution to have been burnt was not even constructed; that its dimensions as given are so small that 11 persons could not have been sleeping in it; that in the neighbour, hood there was no mark of habitation in the hut. Witnesses have made contradictory statements about the time when the hut was constructed and as to the place from where the materials for its construction were brought. No hoof-marks of the mare on which Ambica Singh is said to have been riding were found at the place where they ought to have been found; and it was urged that what was found was due to the pony of the ekka on which the Sub-Inspector reached the spot. We have looked into the evidence in the light of these comments and do not consider it desirable to prolong this judgment by dealing with them in detail, as has been done by the learned Additional Sessions Judge.

It is sufficient to say that we see no reason to differ from his conclusions on these points. There is no dispute that an occurrence took place in which Ramnarain was killed and Lalmohar and Ujagir were wounded. The explanation of the defence that when the prosecution party was stealthily attempting to put up a hut, they were seen by their rakhwaras (guards), who were occupying the hut of Gangauli Thakurs on 77 bighas of land, and that a fight took place between the prosecution party and these rakhwaras cannot be accepted. The hut in the 77 bighas of land was by no means close to the scene of the occurrence, and it is far from probable that in the dead of night the rakhwaras (of whom none has been produced) noticed the alleged erection of the hut and went up to interfere. In our opinion, the view of the learned Additional Sessions Judge is right that the occurrence took place in the manner deposed to by the prosecution witnesses.

The question of participation by individual accused in the raiyat has received very careful consideration at the hands of the learned Additional Sessions Judge. We have also looked into this question and are of opinion that the learned Additional Sessions Judge has come to the correct conclusions. There is therefore no merit in the appeal. We now take up the application ink revision in which the first informant asks; us to convict the appellants of the offences of which they have been acquitted by the; Additional Sessions Judge and to enhance the sentences passed upon them. This Court is as a rule loath to entertain such applications from private parties in ordinary circumstances. But there are in this case (as we have said before) clear indications that the accused party has been; defying law and disobeying the orders, both i of the Civil and of the Criminal Courts, and has been repeatedly creating trouble in the locality for many years past. We therefore decided to entertain the application in revision. The circumstances are such that even without the application we should have felt it our duty suo motu to consider whether the sentences are adequate, if not also whether the appellants were not wrongly acquitted of some of the more serious charges.

We agree with the learned Judge below that on the evidence on record the conviction of Lalchand Thakur under 8. 302 and of the other appellants under Sections. 302/149 was not possible. The learned Judge has referred to the discrepancies in the evidence about the weapons used, and pointed out that the eye-witnesses could not really have seen the actual assault which took place at some distance from them. He is similarly right in acquitting Jagannath Thakur. Kawal Thakur, Chaman Thakur, Rajdayal Thakur and Jamuna Prasad Thakur of the specific charges u/s 324, I.P.C. The evidence in this connexion comes only from the victims Ujagir and Lalmohar and is not free from contradictions and other difficulties. We do not however see any good reason why the learned Judge did not con. viot all the appellants (exoepting Lalchand Thakur) under Sections 326/149, I.P.C., as included in the actual charge under Sections 302/149 framed against them. The reason given by him for not applying Section 149 to the murder is that the murder was not committed in the prosecution of the common object of the unlawful assembly. In our opinion it was. But even if the contrary were to be held, attention must be paid to the second part of Section 149, I.P.C., which we underline (italicize) below:

If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence,

If a mob armed with deadly weapons (goes to achieve a particular object by force [or show of force, it is reasonable to infer that all the members of the assembly know that grievous hurt, if not murder, is likely to be caused in prosecution of that object. The murder and the assaults in the present case were not isolated acts committed by individual members of the assembly independently of the common object. It is obvious from the manner in which the riot was committed that the members of the unlawful assembly were out to terrorize the prosecution party by destroying their hut and beating them in order to deter them from remaining on the land. Among the two objects mentioned in the charge, one was to commit assault, and assaults were committed in prosecution of that object. Even if it could be properly held that the murder was not committed in prosecution of the common object of the assembly, the liability u/s 149 would remain in so far as the members of the assembly knew that at least grievous hurt would be caused in the riot. We are therefore clearly of opinion that the appellants were wrongly acquitted of the charges u/s 149 altogether. But we do not propose to convict them under Sections 326/149 for reasons which will now be stated.

The question arises whether this Court .under its combined appellate and revisional powers can convert the acquittal (under Sections 302/149) into a conviction (under Sections 326/149) and then pass a sentence where none was passed by the lower Court. Two propositions are now settled by decisions of their Lordships of the Judicial Committee. In AIR 1935 35 (Privy Council) their Lordships held that in the exercise of its revisional powers u/s 439, Criminal P.C., 1898, a High Court upon having the record of a criminal proceeding brought to its notice on an appeal from the conviction therein, can call upon the appellant to show causa why the sentence should not be enhanced, and having heard and dismissed the appeal can forthwith enhance the sentence under that revisional power although precluded by Section 423 from doing so in the appeal. In Kishan Singh v. Emperor A.I.R (1928). P.C. 254 they held that a High Court cannot, while exercising its revisional power u/s 439, Criminal P.C., convert a finding of acquittal into one of conviction and then enhance the sentence. In this case their Lordships referred to the case in In re Bali Reddi A.I.R (1914) . Mad. 258 and pointed out that the view taken in, that case, as regards Section 439(4) was not accepted in Allahabad in Emperor Vs. Sheodarshan Singh, and in Bombay in Emperor Vs. Shivaputraya Durdundaya, The view taken in these last two cases was approved, but their Lordships, after referring to the fact that in the Madras case there was an appeal by the accused, besides a rule issued in revision by the High Court, considered it unnecessary to express any opinion whether the facts would justify the Madras decision. They were however definitely unable to agree that Section 439(4) refers to cases ending in a complete acquittal and not to cases ending in conviction of a minor offence included in the offence charged. These two decisions however do not directly touch the question before us, viz. whether, while dealing with an appeal of a convicted person, his acquittal of some charges can be set aside and he can be convicted of them and sentenced. Since the decision of their Lordships in Kishan Singh v. Emperor A.I.R (1928) . P.C. 254 there have been two Indian decisions, one in Allahabad and the other in Lahore, which seem to be conflicting.

In Sarda Prasad Vs. Emperor the learned Judges of the Allahabad High Court held the a Court of Appeal cannot u/s 423(1)(b), Criminal P.C., set aside an express order of acquittal, nor can the High Court do so in revision, having regard to Section 439(4). The alteration of a finding within the former Section was in their opinion not the same as reversal. They referred to the decision of their Lordships of the Judicial Committee in Kishan Singh v. Emperor A.I.R (1928) . P.C. 254 and concluded that neither an Appellate Court nor a revisional Court has power to reverse the finding of acquittal and convert it into one of conviction, and that where an accused is charged with two separate offences, and the trial Court convicts him of one and acquits him of the other, and the Court of Session on appeal differs from the trial Court on both points, the case must be referred to the High Court which has an unrestricted power in revision to order a retrial.

As we have said however their Lordships of the Judicial Committee in Kishan Singh v. Emperor A.I.R (1928) . P.C. 254 left open the question of the power of a High Court to alter findings in an appeal from a conviction. In Mehdi v. Emperor A.I.R (1933) . Lah. 661 it was held that under the combined provisions of Sections 423 and 439, Criminal P.C., a High Court has power to alter a conviction u/s 326, Penal Code, to one u/s 302, Penal Code. This is directly opposed to the Allahabad view in Sarada Prasad v. Emperor A.I.R (1937) . All. 332. The learned Judges referred to the decision of their Lordships of the Privy Council in Kishan Singh v. Emperor AIR 1928 PC 254 and observed that in that case their Lordships had expressly stated that they did not decide the point as to the combined powers of the High Court under the two Sectionals decided in In re Bali Reddi A.I.R (1914). Mad. 258. As in our opinion also, their Lordships of the Privy Council have not decided the matter, it is necessary to examine the position in some detail. In On Shwe v. Emperor A.I.R (1924) . Rang 93, it was held that in an appeal from a convictions u/s 304, Penal Code, (the accused person having been committed to stand his triad Section 302, Penal Code), where in addition the High Court takes seisin of the case also in its revisional jurisdiction, the conviction for the lesser offence can be converted into one u/s 302, Penal Code, and the sentence can be enhanced accordingly, under the combined provisions of Sections 423 and 439, Criminal P.C. This case was however decided before the decision of their Lordships of the Privy Council in Kishan Singh v. Emperor A.I.R (1928) . P.C. 254. We are not aware of any later decision of the Rangoon High Court on the point. And in the present case the appellants have been convicted of rioting a conviction which we must affirm so that there is here no question of merely altering a finding u/s 423(1)(b)(2) and then enhancing the sentence.

In the Madras High Court the earliest relevant case which has come to our notice is Appana v. P. Mahalakshmi (1911) 34 Mad. 545. In this case the High Court held that u/s 423(1)(b)(2), Criminal P.C., the Appellate Court may alter the finding maintaining the sentence and that there is nothing to restrict the finding which may be altered to a finding of conviction. In the later case in In re Bali Reddi A.I.R (1914). Mad. 258, already referred to, the view was taken that the acquittal referred to in Section 439 is a complete acquittal, but this was expressly disapproved by the Privy Council in Kishan Singh v. Emperor A.I.R (1928) . P.C. 254. It is also held that in an appeal from a conviction, the finding can be so altered as to convict the accused of an offence of which he has been acquitted by the trial Court. The correctness of this view seems to have been left open in Kishan Singh v. Emperor A.I.R (1928) . P.C. 254. But the same High Court in In re Subba Chukli A.I.R (1927) . Mad. 582 seems to have dissented from this view. It is true that this was a case in revision and not an appeal, but the express dissent from In re Bali Reddi A.I.R (1914) . Mad. 258 is to be noted, being prior to the Privy Council decision in Kishan Singh v. Emperor A.I.R (1928) . P.C. 254.

A number of Calcutta cases were placed before us, but only two of them are of some help in this case. One is Queen Empress v. Jabanulla (1896) 23 Cal. 975, where it was held that the Appellate Court can u/s 423, Criminal P.C., in an appeal from a conviction, alter the finding of the lower Court and find the appellant guilty of an offence of which he was acquitted by that Court; there was however no question of enhancing the sentence or passing an additional sentence in respect of this conviction. In Hanuman Sarma Vs. Emperor, where an accused charged u/s 376 and Section 354, I.P.C., was acquitted of the former offence and convicted of the latter, the High Court altered the conviction to one under Sections 376/511, I.P.C., Mallik J. held that the acquittal u/s 376, I.P.C., did not constitute acquittal under Sections 376/511, I.P.C., while Remfry J. was of opinion that in spite of the acquittal the High Court could u/s 423(b), Criminal P.C., convert and alter the finding of acquittal into one of conviction. All the cases which we have referred to above are cases in which a conviction of a lesser offence was converted into one of a graver offence or a conviction of one offence was substituted for a conviction of another offence, though the trial Court had recorded an acquittal on the former. None of them is a case in which while a conviction of one offence was maintained, the Appellate Court added a conviction of another offence of which the1 appellant had been acquitted by the trial Court.

We now come to Patna cases. Here again there is practically no case which directly touches the question before us. The nearest case which can be found is Wazir Kunjra v. Emperor A.I.R (1929) . Pat. 139. In this case the accused Wazir Kunjra was acquitted by a Magistrate of an offence u/s 326, I.P.C. and convicted u/s 148, I.P.C. only. On a reference made by the Sessions Judge, the High Court convicted him u/s 326 and awarded a sentence in addition to the sentence imposed by the trial Court u/s 148, I.P.C. This was done in March 1928, under the revisional powers of the Court, and can no longer be regarded as good law after the later Privy Council decision in Kishan Singh v. Emperor A.I.R (1928). P.C. 254. Other cases need not be referred to in detail, as they all relate to replacing one conviction by another, as for instance, Mahangu Singh and Others Vs. Emperor, . In view of the divergence of judicial opinion before and after the Privy Council decision in Kishan Singh v. Emperor A.I.R (1928) . P.C. 254. we have considered whether it would not be desirable to refer this case to a larger Bench for an authoritative pronouncement on the point. But in the circumstances of this case the point is relatively unimportant; the appellants have already been subjected to the cost of one long hearing, and we feel that they can be adequately dealt with without pursuing this aspect of the revisional application any further. That application will therefore be allowed only in respect of the sentences on the charges of which the appellants have been found guilty.

The appellants'' repeated defiance of the orders of various Courts both Civil and Criminal, of which we must take notice, can be appropriately dealt with u/s 106, Criminal P.C. In affirming their convictions on the charges of rioting we consider that the sentences passed by the lower Court are not altogether adequate and that the following sentences will suffice to meet the ends of justice:

Ambika Thakur. u/s 147, I.P.C. two years'' rigorous impris- onment and a fine of Rs. 200 (rupees two hundred) with six months'' rigorous imprisonment in default. 2. Ram Prasad Thakur; u/s 147, I.P.C. 3. Sheo Prasad Thakur; One and half years'' 4. Kuar Thakur; rigorous imprisonment. 5. Nagina Pandey; and a fine of Rupees 50 6. Sheodahin Thakur; each, with six months'' 7. Maina Thakur. rigorous imprisonment in default. u/s 147, I.P.C. two years'' rigorous imprisonment and fine of Rs. 100 with three 8. Nawab Thakur. months'' rigorous imprisonment in default. 9. Beni Madho Thakur; u/s 148, I.P.C. 10. Lal Chand Thakur; two and a half years'' 11. Jagarnath Thakur; rigorous imprisonment 12. Chhabila Thakur; and a fine of Rs. 50 each 13. Kawal Thakur alias with three months'' fur- Ramkawal Thakur; ther rigorous imprison- 14. Chaman Thakur; ment in default. 15. Rajdeyal Thakur; 16. Jamuna Prasad Thakur.

We enhance the sentences as above, and direct that out of the finds realized, Rs. 500 be paid to the lessees of the Maharaja through the first informant. We further u/s 106, Criminal P.C., order that the appellants do each of them execute a bond with sureties, as specified below, to keep the peace for a period of three years from the dates of their release from nil. Ambika Thakur and Nawab Thakur, execute bonds of Rs. 500 each with two sureties of Rs. 250 each, and the remaining, appellants to execute bonds of Rs. 200 each with two sureties of Rs. 100 each.

In case any appellant or appellants fail to execute the bonds with sureties as specified above, the defaulter or defaulters will suffer simple imprisonment for the same period (three years) from the dates from which they would otherwise be due for their release from jail.