B.K. Mullick, J.

1. The Petitioners were tried by a second class Deputy Magistrate who being of opinion that the sentences that ought to be passed were in excess of his powers referred the case to the Sub-Divisional Magistrate. The Sub-Divisional Magistrate has found the Petitioner guilty of offences under ss. 147 and 323 of the Indian Penal Code and sentenced Gita Prasad Singh and Jageswar Prasad Singh to rigorous imprisonment under S. 147 of the Indian Penal Code for two months and a fine of Rs. 100 each. The remaining Petitioners have been sentenced to rigorous imprisonment for two months each. An appeal was made to the Sessions Judge and he, by his order dated the 15th June 1923, has affirmed the sentences and dismissed the appeal.

2. The present application is made by the Petitioners for the exercise of our revisional jurisdiction.

3. It has been found that the alleged riot took place on plot No. 7657 and that the complainant Mahabir Singh was in possession on the 23rd July 1922, and was engaged in Sowing janera and methi upon the land when he was attacked by the Petitioners and a large mob and he and one Baldeo on his side were wounded with lathis. Information was given by two Chaukidars named Chatardhari and Brohan to the police station shortly before the riot to the effect that a breach of the peace was imminent and when the Head Constable arrived with them at the place of occurrence he found Mahabir and Baldeo on the land as well as five persons on the side of the Petitioner Gita Prasad Singh. Gita Prasad Singh states that he was not at the occurrence but that his men went to plough the land and were engaged in sowing methi, janera, caster oil and till when they were attacked by Mahabir and a large mob.

4. The learned Sessions Judge finds bakasht land belonging to one Raghubans who was a joint proprietor with Gita Singh and others in the estate in which the disputed land now lies, Sometime ago there was a Collectorate partition and the disputed plot fell to the share of Raghubans. The case of Gita Singh is that this plot had previously been in his exclusive possession and that although it fell within the block assigned to Raghubans, he did not relinquish possession and that on the 16th February 1922, there was a settlement between Raghubans on the one side and himself on the other, by which he took a zarpeshgi mortgage of this plot and other lands for a consideration of Rs. 10,000 and that on the date of occurrence he was in possession of the land. On the other hand Mahabir's case is, and the learned Sessions Judge finds, that in the year 1325 F. Mt. Pryago, the grand-mother of Raghubans, executed on his behalf, he being still a minor, in favour of Mahabir in respect of this land a temporary lease for 4 years which expired about May 1922.

5. Mahabir alleged at the trial that on the 24th January 1922, that is to say, four months before the expiry this lease, Mt. Pryago executed a second lease in his favour for a term of nine years. This document the learned Sessions Judge finds was a forgery. Therefore the position is that after the expiry of the first lease the title of Mahabir was determined and he had no right on the strength of his original lease to remain upon the land. The learned Sessions Judge, however, finds that Mahabir was holding over, but legally there could have been no holding over without the consent of the landlord, and in this case Raghubans deposes that Mahabir was never a tenant and he certainly was not his tenant after May 1922. Therefore no case of holding over can be mentioned. It is, however, contended that, although Mahabir may have had no title he was in actual physical possession of the land and that it was a criminal act on the part of Gita to go upon the land for the purpose of cultivating it, and, upon being resisted to assault Mahabir.

6. Now as an abstract proposition of law, it appears to me that this argument goes too far. The tenant whose right is determined his no right to remain forcibly upon the land and say to his landlord that his will cultivate that land till such time as he is evicted by a Civil Court. From the moment the title of the tenant expires, the landlord is in possession in the eye of the law, and provided that he does not use undue force, he is entitled to go upon the land and if necessary to use force for the purpose of asserting and maintaining his possession.

7. In the present case the question is, whether Gita Singh who was on the 23rd July 1922, in the shoes of the landlord Raghubans did any act which brought him within the purview of the criminal law The oral evidence, in my opinion, is certainly no worse on the side of the defence than it is on the side of the prosecution. After the expiry of the lease in 1325 F. the 23rd July 1922, was the first date on which agricultural operations could have been carried on, and it does not appear to me that since the cutting of the crop of the previous year any act of possession had been done by Mahabir. In my opinion he was not in peaceful possession on the 23rd July.

8. The evidence shows that Gita Singh's party was the first to arrive, and the police and the Chaukidar witnesses, in my opinion, should be believed when they state that the bullocks and the ploughs were the property of Gita Singh and not of Mahabir. When asked to give particulars as to the wood of which the ploughs were made, Mahabir's men were unable to give any satisfactory replies to the police.

9. With regard to the kinds of grain that were sowed the story told by Gita Singh's party is much more consistent with the result of the police investigation than the story told by Mahabir. This fact has been noticed by the learned Sessions Judge, but he has declined to attach much weight to it.

10. Also with regard to the names of the ploughman taken by him Mahabir has broken down. In the course of the trial an attempt was made to show that one Lalji was one of the ploughman but in an information lodged at 11 A.M., on the day of occurrence at the than a by one Show Gulam. It was stated that the man's name was Tofi and it was sought at the trial to show that Lalji and Tofi were one and the same person. That attempt failed. This point also has been found against the prosecution by the learned Sessions Judge, but he thinks that the evidence of possession is so strong that this discrepancy is not of much consequence.

11. The learned Judge has not discussed in detail the evidence of the nine witnesses who gave evidence of possession on behalf of the prosecution; nor of the eight witnesses who gave evidence on behalf of the defence; but he seems to have been chiefly influenced by an order under S. 144 of the Criminal Procedure Code passed on the 10th May 1922, by the Sub-Divisional Magistrate of Begusarai. Apparently an apprehension of a breach of the peace having been reported by the police in respect of the land now in dispute, the Sub-Divisional Magistrate, without taking any oral evidence but after the examination of certain documents, issued a prohibitory order upon Gita Singh restraining him from going upon the land. That order was affirmed in the first instance by the District Magistrate but further enquiry was ordered by the High Court and the case was remanded to the District Magistrate. By that time the period of two months for which the order was in force had expired and the Distract Magistrate considered it unnecessary to hold any further enquiry.

12. The learned Sessions Judge has used the findings of the Deputy Magistrate in the above proceedings as legal evidence of the possession of Mahabir, and in my opinion he was wrong in doing this The judgment in the case is certainly not admissible as a judgment. The fact of the order may be admissible under S. 13 of the Indian Evidence Act but having regard to the peculiar jurisdiction conferred by S. 144, no inference can be drawn from it as to the possession of Mahabir. It was a summary order and although the police asked for action under S. 145 of the Criminal Procedure Code, the learned Sub-Divisional Magistrate adopted the course which has been time after time viewed with disfavour by the High Court, and the very mischief which was sought to be cured has occurred in this case; a temporary injunction intended for emergencies has been utilised in the present trial as substantive evidence of the possession of the successful party. In my opinion the learned Judge should not have attached any value to the Sub-Divisional Magistrate's order, and he has, in my opinion, been greatly influenced in the decision of this case by his erroneous appreciation of the value of that order.

13. We have in consequence been compelled to treat this case as an appeal and to examine the evidence for ourselves in order to see whether the finding with regard to the possession of Mahabir can be sustained. Having regard to the legal position and to the evidence I think the finding of the learned Judge is wrong and that the Petitioners committed no offence in going upon the land for the purposes of ploughing it. If they had acted in a tumultuous manner and exceeded the right of private defence which undoubtedly was theirs, they would no doubt have been guilty of the offence of rioting. In this case the force used was, in my opinion, not excessive having regard to the nature of the attack delivered by Mahabir.

14. The learned Assistant Government Advocate has attempted to challenge the finding of the learned Sessions Judge with regard to the second patta of the 24th January 1922; but it is quite clear that at the time that this second patta was alleged to have been executed by Mt. Pryago (by the pen of the patwari Jagdambi) the proprietor Raghubans had attained majority and that Mt, Pryago had no authority to execute the document. In my opinion the learned Judge was right in finding that the document was a forgery and that it had been manufactured by Jagdambi after his dismissal for the purposes of this case. The date of Jagdambi's dismissal has not been found. According to Raghubans, it took place about January 1921, according to Jagdambi himself it took place in or about August 1922; but whatever be the correct date, there can be no doubt that at the time of the second patta Raghubans had attained majority and Mahabir know that neither Mt. Pryago nor Jagdambi had any authority to renew his lease. Any argument based on the supposition that he acted bona fide, is, in my opinion, untenable.

15. In these circumstances the convictions and sentences will be set aside and the Petitioners acquitted. They will be discharged from their bail and the order under S. 106 of the Criminal Procedure Code which has been passed against them will also be set aside.

John Bucknill, J.

I agree.