Kesho Prasad vs Nandji Singh

James, J.—In this case Nandji Singh and seven other men were convicted by a Magistrate of Shahabad of an offence punishable u/s 379 of the Indian Penal Code for theft of a crop which was found to have been grown by Ram Swarup Singh on land included in his patti, of which he was in possession. The land lies in Sheopur Diar, apparently subject to inundation, and falling within the jurisdiction of the Courts of Ballia or Shahabad as the deep stream of the Ganges changes its course. There had been a partition of this area in the Ballia collectorate in which pattis had been allotted to the complainant Ram Swarup and the accused Nandji Ram Swarup had obtained demarcation of his patti u/s 29 of the United Provinces Land Revenue Act; and according to the findings of the trial Court the area on which the crop was cut lay on Ram Swarup''s side of the boundary then laid down. Nandji subsequently applied for demarcation of his patti; but after the amin had laid down some stones, the Ballia Court held that this matter was no longer within the jurisdiction of the Revenue Courts of the United Provinces, and the stones were removed.

There was thus no demarcation of Nandji''s patti; but as the trial Court pointed out, so far as the boundary between that patti and the patti of Ram Swarup was concerned, the matter had been settled by the earlier demarcation to which Nandji had been a party; however that may be the principal question which the Court had to determine in this case was whether the accused persons had dishonestly cut this crop knowing that it had been grown by Ram Swarup on land in his possession. The trial Court came to the conclusion that this had been proved and convicted the accused.

The convicted persons appealed to the District Magistrate and the appeal was heard by a Deputy Magistrate exercising appellate powers u/s 407 of the Criminal procedure Code. The learned Magistrate pointed out that no boundary stones ever had been fixed at Nandji''s instance between his land and that of Ram Swarup and that the maps which had been filed in the case could not in themselves show in which patti the land might lie without proper survey and relaying of boundaries. Without considering the evidence of possession he observed that since the evidence on the record did not conclusively prove that the fourteen bighas plot was in the patti of Ram Swarup and not in the patti of Nandji the appellants before him were entitled to the benefit of the doubt.

He accordingly acquitted the appellants The complainant has applied to this Court for revision of the appellate Order.

Mr. Manohar Lal in support of the petitioner before this Court argues in the first place that when the appellate Court remarked that no stones were ever fixed at Nandji''s instance, he ought to have taken into consideration the fact that between the land of Nandji and that of Ram Swarup, the demarcation had been completed at the instance of Ram Swarup in the case to which Nandji was a party. He also points out that the appellate Court has not considered the question of who grew the crop which is the most important point in this case, so that it cannot be said that his judgment is a proper judgment disposing of the appeal.

Mr. S.P. Verma on behalf of the opposite party suggests that at an early stage of the demarcation of Nandji''s patti stones were placed in such a way to extend Nandji''s area where his boundary ran to that of Ram Swarup Singh. That may or may not be so; the point has not been considered by the appellate Court and it would not be proper here to enter into details of evidence. I agree with Mr. S.P. Verma that there may be some difficulty in a case like this in determining exactly by whom the crop was grown and exactly who was in possession of the land; but that fact does not excuse the appellate Court from examining the evidence on the point. The appellate Court has certainly committed an error of law in basing his acquittal merely on the ground that there can be no conclusion when the evidence on the record does not conclusively prove that the land in question is in the patti of Ram Swarup, though the question of whether this land is in Ram Swarup''s patti or not may be of importance for determining the question of possession and of who grew the crop.

But since the appellate Court has not considered those questions at all, the order of acquittal of the 24th July 1933 must be set aside. The appeal will accordingly be remanded for rehearing by the District Magistrate of Shahabad.