Vangaveti Narayana and Another vs Madar Khan

Kuppuswami Ayyar, J.—Both these arise out of the same case, C. C. No. 13 of 1942 on the file of the Sub-Magistrate of Jaggayapeta.

The charge against the petitioners who were accused 1 and 2 in the case was that they committed criminal trespass over 62 acres and 57 cents of

land in S. No. 26 in T. D. No. 232 in Siripuram village in the possession of the zamindar of Munagala on 26th July 1941 at about 7 A. M. When

the complainant, an estate servant, obstructed the accused from ploughing the land, they threatened to cause personal injuries if he interfered. They

were charged with offences punishable under Sections 352 and 447; but they were acquitted in respect of the offence punishable u/s 352 and

convicted only for criminal trespass. The matter was taken in appeal to the Sub-Divisional Magistrate of Bezwada who confirmed the conviction

and sentence. On 16th October 1942, the Sub-Magistrate of Jaggayapeta passed an order directing the delivery of land trespassed to the

zamindar of Munagala. During the pendency of the appeal, the proceedings were stayed and after the appeal was disposed of and the stay was

vacated, an order was passed on 7th April 1943 directing the delivery of possession of the lands as per the original order. Crl. R.C. No. 443 of

1943 is against the order of the appellate Magistrate confirming the conviction and sentence while Crl. R.C. No. 722 of 1943 is for revising the

order of the Sub-Magistrate dated 7th April 1943 directing the delivery of possession of lands to the zamindar.

The property in dispute measuring 62 acres and 57 cents in extent was the subject-matter of a litigation between the Government, an inamdar

and the zamindar of Munagala. At the time of the survey, the entire survey field No. 26 measuring 73 acres 18 cents was surveyed as if it was an

inam land, but the registered extent of the inam was only 10 acres 61 cents. So the suit was filed for the establishment of the zamindar''s rights both

in the melwaram and kudiwaram in the 62 acres 57 cents excluding the ten acres 61 cents which alone was inam and for recovery of possession of

the same. There was also an alternative prayer that in case the defendants should be considered to have acquired a kudiwaram right in the land, for

the establishment of the plaintiff''s melwaram right and for an injunction restraining the defendants from interfering with the said melwaram right of

the plaintiff. The Government represented by the Secretary of State for India in Council was defendant 1 in the suit. There were five other

defendants. The suit was decreed in respect of both the melwaram and kudiva-ram rights and a decree in ejectment in respect of 62 acres 57 cents

was passed; vide Ex. A. That was on 8th May 1935. Proceedings in execution were taken and the property was delivered through Court to the

zamindar on 15th June 1939; vide Ex. O. On that date, the amin went to the village, marked off the 62 acres 57 cents as shown in a plan attached

to the delivery receipt and delivered possession of that land to the agent of the zamindar after removing it from the possession of the defendants.

The prosecution case was that after that the land was lying fallow. There were disputes between the ryots and the zamindar. The ryots'' association

wanted the ryots to take possession of the lands which were not actually occupied by the zamindar. In pursuance of this programme of the

association in dispute these lands were taken possession of by the accused on 26th July 1941. There were originally seven accused in this case. Of

them accused 1 and 2 are brothers and were the active members of the ryots'' association. The other accused were their farm servants. They were

acquitted and accused 1 and 2 alone were convicted and sentenced as stated above. P.W. 1, an estate clerk and P.W. 6 who took possession of

the land on behalf of the estate were examined to prove that the zamindar of Munagala obtained a decree and also possession of the property in

dispute through Court. P. W .2, the kotwal of Siripuram village and a servant of the zamindar, was the complainant and he stated that when he

found the accused attempting to plough the land he obstructed them. He was necked out by accused 3 at the instigation of accused 1 and the

others abused him in foul language. He reported the matter to the estate authorities and again went to the land with some others. He found the

accused actually ploughing it. They refused to heed their words when they were asked to give up ploughing the land and get away. The Village

Munsif, P.W. 3 and P.W. 4 who went with P.W. 2, corroborated his version. The accused''s version was that they have been in possession of the

land prior to the date of offence and denied the trespass. They attempted to show that the, entire 73 acres 18 cents had belonged to the inamdar in

various shares. The first accused''s case was that he purchased the share of one Krishnamacharyulu under Ex. 8 and that even prior to the same he

was in possession as a lessee. Both the Courts found that the alleged prior possession of the accused was not true and they committed trespass

into the land and found them guilty of trespass.

It is urged before me that it is not all trespass that would amount to criminal trespass and that there is nothing in this ease to indicate that the

trespass was caused with the intent to annoy, intimidate or insult the zamindar. The prosecution case was that the petitioners were members of the

ryots'' association and it was with a view to annoy, intimidate and insult the zamindar that all lands not cultivated and in possession of the zamindar

were sought to be trespassed upon by the ryots and that is how the appellants came to trespass upon this land. Both the Courts have found that the

appellants entered into the land with intent to annoy, intimidate and insult the zamindar who was in possession of the land. I do not think there are

any grounds for differing from the findings of the two Courts that the zamindar was in possession of the lands from the date of the delivery on 8th

June 1939 and prior to the date of occurrence and that the petitioners trespassed upon them. The version that they were in possession before the

date of offence is not one that could be accepted. Krishnamacharyulu through whom the accused 1 in this case claims a right to the property was a

party to the suit O.S. No. 659 of 1934 on the file of the District Munsif''s Court of Bezwada. That suit was not only in respect of the melwaram

right but also in respect of the kudiwaram right and Krishnamacharyulu was defendant 4 in that suit and a decree in ejectment was passed. Exhibit

C shows that there was a delivery of possession on 8th June 1939. Exhibit 8, a sale deed to accused 1, is dated 13th June 1941, a few days prior

to the alleged date of occurrence. Exhibit 9, the cultivation account no doubt shows that there were crops of ground nuts, sajja and anumulu in July

and jonna in October on that land. But then if the trespass was at the end of July and it is stated by the prosecution that the petitioners cultivated

the land after ploughing it on 26th July, there was nothing wrong in the karnam describing the land as having been cultivated in July. The Karnam''s

evidence on this point that he inspected the land on 15th July was not believed by the two Courts and I see no reason to differ from those findings.

It is next urged that P.W. 2 in cross-examination stated that a major portion of the land was ploughed when he went near the field. From this it

was sought to be inferred that it would not have been possible to have ploughed a major portion of the 62 acres odd on the morning of the date of

occurrence itself. But then it was elicited in re-examination that the accused ploughed about 4 acres and if in cross-examination by a major portion

of land was meant the 4 acres that was ploughed it must have been possible to plough a major portion of the 4 acres on the morning of the date of

occurrence as the evidence itself was to the effect that it was not one team but three teams that entered the land to plough.

It is urged for the petitioners on the strength of the observations in Vellappa v. Bheemarao AIR 1918 Mad. 136 and in the matter of Govind

Prasad (1978) 2 All. 465 that the prosecution will have to prove definitely that there was an intention to insult or annoy the zamindar. It was further

stated that the zamindar was not present then and there could have been no intention to annoy him. But as pointed out in Chinna Venkatesu v.

Kesamma AIR 1931 Mad. 231 an offence of criminal trespass could be committed even when the person in possession of the property is absent

provided the entering into or upon the property was done with intent to annoy or intimidate. In this case there is evidence that the appellants were

active members of the ryots'' association; vide the evidence of P.W. 1. There was an agitation by the association to high handedly take possession

of the land which was the subject-matter of the case and also other similar lands when this offence was committed. P.W. 1 stated that this offence

was committed under the advice of the leaders of the ryots'' association. It is therefore clear that when the object of the association was to take

possession of the lands in possession of the zamindar in a high-handed manner, the trespass must have been with intent to annoy and insult him and

the mere fact that he was not present would not indicate that there could have been no intent to annoy or insult. A man need not necessarily be

insulted by acts done in his presence. I therefore find that the petitioners were rightly convicted. The sentence of a fine of Rs. 30 cannot at all be

said to be excessive. Cr. R.C. No. 443 of 1943 is accordingly dismissed.

With regard to the other petition namely Crl. R.C. No. 722 of 1943 it is said that u/s 522, Criminal P.C., the order must be passed within one

month. The judgment in the case convicting the accused was delivered on 28th September 1942 by the Sub-Magistrate of Jaggayapeta. Since the

order sought to be revised was passed on 7th April 1943 it is stated that this is invalid. Further it is contended that the order directing the delivery

to the zamindar and not to the complainant was invalid. The order was, directing delivery, first passed on 16th October 1942 within one month

from the date of the conviction; but the execution of that order was stayed under the orders of the appellate Court and it was only after the

appellate Court dismissed the appeal and the stay order was vacated, the order could be executed and that is how the second order came to be

passed on 7th April 1943. The order dated 7th April 1943 is not the order passed u/s 522 of the Code. That order was passed on 16th October

1942 itself. Only it was given effect to later, since till then there was a stay by the appellate Court. The next contention is that the delivery should

not have been ordered to be made to the zamindar since he was not the complainant. But then the complainant was the kotwal, the agent of the

zamindar and the finding was that the zamindar was dispossessed of the land by show of force. In these circumstances the order was rightly made.

Crl. R.C. No. 722 of 1943 is also dismissed.