Bindeswari Prasad Singh vs Emperor

Mullick, J.—The petitioners have been sentenced to three weeks'' rigorous imprisonment each u/s 147 of the Indian Penal Code for committing a riot in respect of a piece of water known as Arganda Kund.

It appears that the complainant Kauli Nunian has obtained a fishing lease of the water from the tenure-holder of the village, who are the Jalaha Factory. It is alleged that on the day of occurrence Kauli, together with four factory peons and eight fishermen from the village in which the Factory is situated, came and began to fish in a ditch claimed by the petitioner Bindeswari, asserting that he was entitled to do so under the lease. The learned Sessions Judge finds that the ditch is on the site of the occupancy holding of the petitioner, that few years ago, at the time of the Record of Rights, the land was in a culturable condition and was recorded as the holding of the petitioner and that in the revisional settlement, which has just been completed, there is an entry in the column of remarks to the effect that the ditch is in possession of the petitioner, the land having been washed away and being now covered by water. The learned Sessions Judge also finds as a fact that the petitioner was in possession of the ditch and that he had a right of private defence as against the persons who came to fish forcibly in it, but the learned Judge has convicted the petitioner and his party because it is said that having come with 20 or 25 men armed with lathis they have exceeded the right of private defence, and the common objects found against them is art intention to assert a right or a supposed right to the ditch.

In my opinion, upon the finding, the conviction cannot stand, The petitioner Bindeswari Prasad was in possession of the ditch and had a right to fish there. Kauli Nunian had, no right to come there with a party of 12 or more men and to disturb the petitioner''s possession.

It is contended by the learned Government Pleader on behalf of the Crown that the petitioner was not in possession, because on the previous day he had been dispossessed by the lessee who had fished in it without molestation. If the lessee did fish in the ditch on the previous day that would not constitute dispossession in the eye of law. At the most his act would be a disturbance of possession and there is a distinction between dispossession and disturbance of possession. The petitioner Bindeswari being in possession on the day of the occurrence, he had a right to oppose the complainant''s party by reasonable force. Having regard to the injuries inflicted upon the complainant''s party, which were slight, that force was not unreasonable. On the other hand, the evidence shows that the complainant''s party inflicted injuries upon Bindeswari''s party, which were far severer than the injuries inflicted by Bindeswari''s party. In our opinion, the right of private defence was not exceeded and there was no unlawful assembly and the convictions and sentences are set aside.

Thornhill, J.

I agree.