Ramkishun Agarwalla vs Emperor

Agarwala, J.—The petitioner has been convicted under Sections 447 and 426, Penal Code in respect of offences alleged to have been committed in mauza Dhansar. The history of the land on which the offences are said to have been committed is as follows: In 1917 the Raja of Jharia granted the underground rights in 400 bighas in mauza Dhansar to one Hardeo Das. The grantee transferred his rights to Ramjash in 1920. Ramjash sold his rights with respect to 340 bighas to Buplal in 1924 and with respect to the remaining 60 bighas to Lachmannarain, the petitioner's predecessor. By the original grant, the grantee had the right to use such parts of the surface as was necessary for the purpose of extracting coal.

In 1925 the Record of Rights with regard to mauza Dhansar was finally published. In that record Ramjash was recorded as being in possession of certain plots, including plots Nos. 380 and 381 with which I am concerned in the present case. The Record of Rights was published so soon after the transfer of 340 bighas to Buplal that the latter's purchase does not find a mention in it.

In 1934 the petitioner obtained a license from the Baja to quarry for fireclay in the whole of the mauza Dhansar except in those portions which were in the occupation of tenants. In 1936 he attempted to extract fireclay from plot No. 381. This led to a proceeding u/s 144, Criminal P.C., which resulted in his being res. trained from extracting clay in that plot. In 1936 the complainant who is a son of Buplal, was called upon by the Baja to pay rent for certain plots including plot No. 381 and in response to that demand the rent for three years was paid. In January 1937 the petitioner again commenced extracting fireclay in plot No. 381. There appears to have been no interference with him for a few days, but then the complainant appeared on the scene with an amin and having ascertained with the help of the amin that the portion being excavated fell within plot 381, he instituted the present prosecution of the petitioner for trespass and committing mischief.

Both the Courts below have concurred in finding that plot 381 is in the possession of the complainant and has been in his possession from a period prior to the grant of the license to the petitioner to ex tract fireclay from mauza Dhansar. In the Court of appeal below, the petitioner challenged the correctness of his conviction mainly on the ground that in attempting to ex tract fireclay from plot 381 he was actuated by a bona fide belief that he was entitled to do so. The Court of appeal below found itself unable to believe in the bona fide motive of the petitioner. The learned advocate for the petitioner in this Court has addressed himself to the same question of the bona fide belief. The learned advocate points out that the entry in the Record of Bights in 1925 in respect of possession of plot 381 is in favour of Ramjash who obtained only a transfer of the underground rights in 340 bighas of land from Hardeo Das, and there is nothing to show that the complainant ever acquired any rights in the surface in respect of which Ramjash had been recorded. The learned advocate also points out that the Courts below were wrong in treating the order u/s 144 as evidence of the complainant's possession and that in any case, the complainant was not entitled to possession over the whole of plot 381 so as to exclude the petitioner's right under his license to take fireclay in such part of plot 381 as was not in the exclusive possession of the complainant. Beading the Record of Rights with the rights of the original grantee of the underground rights, the proper inference I think is that Ramjash was using plots 380 and 381 for the purpose of working the coal. There is no evidence that any other part of mauza Dhansar had been used by Ramjash for this purpose. The question remains whether the complainant acquired those rights in plot 381 which Ramjash had established for himself while he held the lease.

This question, I think, is answered by the Raja's demand for rent in 1936. If I understand the case for the defence correctly, it is a suggestion that the Baja colluded with the complainant for the purpose of this case and that, therefore, the evidentiary value of the demand for rent and payment of rent should be discounted. No part of the record has been pointed out to me to show that the Raja colluded with the complainant in this matter. It there, fore seems to me that the demand for rent, in respect of plot 381, is very strong evidence of the complainant's possession of that plot as a tenant and that this must be considered with the fact that plot 381 was one of the plots on which Ramjash was exercising rights above the surface for the purpose of extracting the coal from under the surface. I therefore agree with the decision of the Courts below that the complainant has established his possession with respect to the disputed land and this conclusion is supported by the oral evidence in the case which was accepted by the learned Magistrate who saw the witness under examination.

The question however is whether the petitioner's claim to extract fireclay from these plots in pursuance of his license was bona fide. His attempt, as I have already said, to do so in 1936 failed by reason of the proceedings u/s 144. Now, although that order may not be taken into consideration for the purpose of establishing the complainant's possession, it is relevant for the purpose of testing the bona fides of the petitioner's claim. He then failed to substantiate his claim to extract fireclay from plot 381 and in the absence of evidence showing that the position has changed since then, it must be taken that since the passing of that order he has had notice that he had no right to take the action which he did in January 1937.

It was contended that the order u/s 144 was confined to a small portion of plot 381 and not to the whole of that plot. The proceeding stated that the second party (that is, the present petitioner) was encroaching upon the land of the first party in plot No. 381 of mauza Dhansar under the name and style of North Bhagatdih Colliery in which there was a coal stock and the parties were called upon to show cause why they should not be restricted from dispossessing the first party till the first party should be evicted by a competent Court. There is in that notice no suggestion that the proceeding was confined to a small portion of plot 381. It was in respect of the whole area in respect of which Ramjash had been recorded in the Record of Rights and in respect of which the Baja had called upon the complainant to pay rent. The contention that the petitioner was not aware of the extent of the complainant's rights cannot stand scrutiny in view of the 144 proceedings.

I agree therefore with the Courts below that the petitioner has failed to show that his claim to exercise rights in plot 381 was bona fide. I would discharge this rule.