Mohammad Noor, J.The facts of the case are these. One Barho Babu purchased in execution of his mortgage decree against accused, Malu Singh about 21 bighas of land belonging to him situated in village Barhauna, Police Station, Hasua, District Gaya. One of the plots so purchased was plot No. 4714 in khata No. 955 where the occurrence, the subject-matter of the present case, took place. According to the prosecution possession was delivered to the decree-holder auction-purchaser on 12th March 1932, and was formally taken on his behalf by the witness, Ramlal Singh, his servant. The defence however denied this delivery of possession, and I shall refer to it later. Next day after this delivery of possession there was an apprehension of a breach of the peace, as Barho Babus men wanted to harvest the standing rabi crop.

2. The police of Hasua inquired into the matter and reported for an action u/s 144, Criminal P.C. Notice under that section was issued against Malu Singh and others by the Sub-divisional Magistrate of Nawadah on 15th March 1932, and made absolute on 6th May 1932. In the meantime the civil Court accepted the report of delivery of possession and disposal of the execution case on 1st April 1932.

In April of the next year, Malu Singh and his party seem to have created trouble again and a second order made u/s 144, Cr. P.C., was passed by the Sub-divisional Officer of Nawadah on 11th April 1933. The accuseds party were forbidden from going near the land sold, and the police were ordered to arrest Malu Singh and his men if they did so.

3. The Sub-divisional Officer had contemplated a proceeding u/s 107, Criminal P.C., but withheld it for the time being. In the meantime there was a case against the accused party for assaulting Barho Babus men and removing some rabi crop. The case ended in acquittal. The accused in that case (Malu Singh and others), however did not claim possession over the disputed lands; rather they admitted the possession of Barho Babu. There are passages in the judgment of that case, which show that Barho Babus men harvested the drop with the aid of the police. The accused seem to have created trouble once more, and a case u/s 107, Criminal P.C., was started against them. They appeared and admitted the possession of Barho Babu and undertook not to go near the land.

4. In view of this attitude the Sub-divisional Magistrate dropped the proceeding on 21st July 1933. According to the prosecution, Barho Babu had planted paddy crop in some of the fields. On 15th November 1933, Prasad Singh, gomasta of Barbo Babu, along with some Barahils and labourers went to harvest the paddy of plot No. 4714. The reaping was finished some three gharis before sunset, and some bundles were removed to the Khalian. Only five bundles had to be removed when the accused with about 50 men armed with garansas, lathis and spears appeared on the scene. The remaining five bundles had been lifted by five labourers when the accused Malu Singh and Bani Singh instigated an assault. Four labourers managed to run away, but the fifth, Bhattu Pasi, was overtaken by the mob and was assaulted by the accused Bhattu Singh and Mahabir Singh with garansas, by Rami Singh with a lathi and by Shamdeo Singh with a spear.

5. The gomashta, Prasad Singh, was also assaulted by Amo Singh, Biso Singh and Kailash Singh; by the former two with garansas and by the third with a spear; accused, Bagho Singh and Kokil Singh, are also said to have struck him with lathis. Bhattu Pasi was very seriously wounded, and ultimately died on 23rd November 1933.

Lachhmi Singh, a Barahil of Barho Babu, lodged a first information before the police, and thirteen accused were sent up for trial. The Committing Magistrate the Sub-divisional Officer of Nawadah, discharged the four accused, Kokil Singh, Bagho Singh, Mato Singh and Sukhdeo Singh, as he found the evidence against them unsatisfactory, and committed the remaining nine accused to the Court of Session.

6. Later on, the District Magistrate of Gaya ordered committal of the four accused also, who had been discharged by the committing Magistrate, and all the 13 accused were placed on their trial. The learned Additional Sessions Judge drew up fresh charges against the accused persons. Mahabir Singh, Bhattu Singh and Shamdeo Singh were charged under Sections 148 and 304, Penal Code; Rami Singh was charged under Sections 147 and 304, Penal Code, Biso Singh and Amo Singh under Sections 148, 324, and 304/149, Penal Code; Malu Singh under Sections 147 and 304/149 Penal Code; Kailash Singh under Sections 148, 326 and 304/149, Penal Code; Bansi Singh under Sections 148 and 301/149, Penal Code, and the remaining four accused, Kokil Singh, Ragho Singh, Malu Singh and Sukhdeo Singh under Sections 147 and 304/ 149, Penal Code.

7. The common object mentioned in the charge of rioting was forcibly preventing the men of Barho Babu from removing the harvested paddy. The charge of culpable homicide related to the death of Bhattn Pasi, and those under Sections 324 and 326, Penal Code, related to the hurt caused to Prasad Singh.

The defence of the accused was a denial of the delivery of possession. It was urged that the delivery of possession and the subsequent proceedings taken before the Magistrate were all paper transactions, and that in spite of them Malu Singh continued in possession of the land and had planted paddy in the plot in question. It was said by them that on the day of occurrence Barho Babu sent a mob to forcibly cut the paddy. Malu Singh and his relations were unable to go on account of some bereavement in the family.

8. They therefore sent some men of village Bhatsendi who had come to them for condolence, and these Bhatsendi men attacked the men of Barho Babu and that they were justified in doing so in the exercise of the right of private defence of property. The assessors found the four accused, who were discharged by the committing Magistrate not guilty, but they found the remaining nine accused guilty and furthur found that Barho Babu was in possession of the field. The learned Additional Sessions Judge however disagreed with the opinion of the assessors regarding the possession of the field, held that the actual possession of the land was with Malu Singh, gave the accused right of private defence of property and acquitted all of them of rioting and connected offences.

9. He however held that four of the accused, Mahabir Singh, Bhattu Singh, Biso Singh and Amo Singh, had exceeded their right of private defence. Accordingly he convicted the first two u/s 304, Penal Code, and sentenced them to four years rigorous imprisonment and the last two u/s 324, Penal Code, and sentenced them to three months rigorous imprisonment. These four persons appealed to this Court, which came up for admission before James, J., and myself. We thought that on the facts disclosed the learned Sessions Judge was wrong in giving the accused the right of private defence of property. We also thought that his view on the effect of a delivery of possession by the civil Court was wrong. These errors had led to a failure of justice.

10. We therefore while admitting the appeal of the convicted persons, issued notice on them as well as on the other accused persons who were altogether acquitted, to show cause why a retrial should not be ordered for the offences of rioting, etc. Later on, the Local Government being dissatisfied with the order of acquittal passed by the learned Additional Sessions Judge preferred an appeal u/s 417, Criminal P.C. The appeal of the four convicted persons and the appeal of the Local Government have been heard together. In view of the Government appeal there is no necessity to take action on the notice issued by the Court.

11. There is no doubt that the learned Additional Sessions Judge took a wrong view of the fact and affect of the delivery of possession and of the law of private defence of property. His finding about the delivery of possession is somewhat inconsistent. On the one hand, he is doubtful whether the civil Court peon ever went to the spot; on the other, he observes

that the series of litigation showed that the delivery of possession by the civil Court was merely symbolical and not actual.

As to the fact of delivery of possession the reasons of his doubts are the absence of the peon, the witnesses and the drumbeater from the witness-box. The peon was summoned but being on leave could not be found. I fail to understand what further light the peon could have thrown on the question of the delivery of possession, as I shall presently show that the delivery of possession in a case like this is a purely formal proceeding. The peon could have said nothing more except what is mentioned in his report. Ramlal Singh who received the delivery of possession on behalf of Barho Babu, has been examined and the learned Judge have given no reason for disbelieving this witness. First of all there is a presumption that judicial and official acts were regularly performed. No doubt this presumption can be rebutted, but there must be circumstances to show that they were not regularly performed. In this case the delivery of possession was accepted by the Court on 1st April 1932. On the next day after the delivery of possession Barho Babus men attempted to harvest the standing rabi crop.

12. There was an apprehension of a breach of the peace. The police went to the spot and made inquiries and reported for action being taken against Malu Singh and others. The Magistrate on the basis of the delivery of possession issued notice on the accused persons, and ultimately made it absolute. The claim of delivery of possession was made to the knowledge of Malu Singh and his assailants. If, as they asserted, there was no delivery of possession, they had ample time to go to the civil Court which, as I have said, did not pass orders till about two weeks later. This delivery of possession was relied upon by the criminal Court on three different occasions. It was the basis of the claim of Barho Babus men.

13. It was freely stated in the criminal case in which Malu Singh and others were prosecuted for causing hurt to Barho Babus men. I fail to understand what earthly benefit Barho Babu and his men could have in suppressing the writ of delivery of possession and in having a bogus report submitted by the peon. The circumstances show that they did not do so. They proclaimed this fact the next day after the delivery of possession. Taking all the facts into consideration, I have absolutely no doubt in my mind that the peon went to the spot and did deliver possession to Ramlal Singh, servant of Barho Babu.

14. As to the observation of the learned Judge about "actual" and "symbolical" possession, I wish to discuss it rather in detail, as unfortunately the use of the expression "symbolical" and "actual" in some decisions has sometimes been misunderstood and has in some instances occasioned failure of justice. The words "actual" and "symbolical" possession find no place in the Civil Procedure Code. The Code requires the Court which passed a decree for possession of an immovable property or sold Lit to an auction-purchaser, to put the decree-holder or the auction-purchaser as the case may be in possession of the same. The relevant Rules are 35, 36, 95 and 96 of Order 21. The first two relate to the delivery of possession to the decree-holder, who has obtained a decree for possession of a property and the other two refer to delivery of possession to an auction-purchaser.

15. In both cases there are two modes of delivery of possession dependent upon the nature of the possession of the judgment-debtor, who is being dispossessed from the property. If the property is in occupation of the judgment-debtor or of some person on his behalf, etc., the Court is to give possession to the decree-holder or auction-purchaser or somebody authorized on his behalf and if necessary remove any person who refuses to vacate the same. If, on the other hand, the property is not in occupation of the judgment-debtor, but is in occupation of some tenant or other person entitled to remain in the occupation of the same, the delivery of possession is to be given by proclaiming to the occupant by beat of drum or other customary mode. For the sake of brevity the first mode of delivery of possession may be called, if one likes to do so, "actual" and the other "symbolical," but the effect of both as against a judgment-debtor is exactly the same. He has been dispossessed by the order of the Court.

16. In the case before us the writ of delivery of possession was issued under Order 21, Rule 95, which provides for delivery of "actual" possession, and not "symbolical" possession, as the lands sold were in occupation of the judgment-debtor. Symbolical possession could not have been given in this case. How actual delivery of possession is to be effected must depend upon the nature of the property. If the property the possession of which is to be delivered is, for instance, a house occupied by the judgment-debtor, the bailiff or other person deputed by the Court must remove the judgment-debtor from the house and put the auction-purchaser in occupation of it.

17. This is what is provided in Rule 95 read along with the form of the writ as given in the Appendix to the Code. But if on the other hand, the property is land or jungle or, hills or tank or underground minerals, it is obvious that the nature of the property precludes the auction-purchaser being put in actual occupation of it by the bailiff. The only thing which can be done in such a case is purely a formal making over of possession by the bailiff. He is to say that he has put the auction-purchaser in possession of it and the receiver of possession is to say that he has received it. Nothing else is to be done.

18. Nevertheless it is actual possession, and not symbolical. The learned Additional Sessions Judge was in error when he said that the civil Court gave symbolical possession, and not actual possession. The civil Court did exactly the opposite. It issued its writ under Rule 95, and the peon formally put the auction-purchaser in possession of the property. It is wrong to think that there are two kinds of delivery of possession; one actual and the other symbolical independent of the nature of possession of the judgment-debtor. Even if the delivery of possession was symbolical, its effect against the judgment-debtor was the same: vide, Pratap Udai Nath Sahi v. Sunderbans Koer 1923 Pat 76 . I am therefore clearly of opinion that by the delivery of possession by the peon Barho Babu got actual possession of the property with title, a possession which it is the duty of the criminal Court to respect, maintain and preserve. It is the duty of the criminal Court to give all the help provided by law to the man who has been put in possession of a property by the civil Court, and the action taken by the learned Sub-divisional Magistrate of Nawadah was perfectly correct.

19. The learned Sessions Judge has remarked that the Sub-divisional Officer ought to have started a proceeding u/s 145, Criminal P.C. This is exactly what he ought not to have done, and he was perfectly right in not adopting that course. The first proceeding in his Court was started a day or two after the delivery of possession by the civil Court. It would have been illegal for him to start a proceeding u/s 145, to try and decide the question of possession between the auction-purchaser, who was given possession of the property by the civil Court a few days before, and the judgment-debtor who was ousted from it.

20. It was his duty to recognize the delivery of possession given by the civil Court, give effect to it and forbid any interference with such possession by the judgment-debtor, as in fact he did. The next point to be considered is whether in the circumstances of the case the accused, or any other person who went on the day of occurrence to resist the removal of the harvested paddy from the field in question had any right of private defence. Now, the possession which a criminal Court respects is a peaceful possession. A criminal Court maintains a man in possession when his possession is peaceful, and expects the man who claims title in that property to have the matter settled in the civil Court. No such question arises in this case. Barho Babu had perfect title to the property and was given possession by the civil Court.

21. I am unable to accept the plea of the defence that in spite of the delivery of possession and the various orders of the criminal Court, in spite of their undertaking not to go near the land, and in spite of their repeated denials that they were in possession of the land, they still continued to be in possession of the disputed land. The learned Additional Sessions Judge has remarked that the undertaking was given for fear of a proceeding u/s 107, Criminal P.C. It was certainly so, but it was nevertheless surrender of claim of possession. They cannot now plead right to private defence of property. Barho Babu and his men were all along alert and were always seeking protection of the criminal Court whenever there was an attempt on the part of Malu Singh and others to disturb his possession. He and his men are not likely to have allowed Malu Singh and his men to remain in peaceful possession of the land in spite of the fact that Barho Babu and his men were all along being protected by the criminal Court.

22. Under the circumstances it is futile to argue that there was a right of private defence. The only thing which appears from the undisputed facts is that in spite of the delivery of possession and the various orders of the criminal Court Malu Singh was trying to stick to the land, and this may explain that the ridge between the plot in question and the land of Malu Singh was found broken. That he regained such a possession of his lost property, which entitled him to defend it against the rightful auction-purchaser, is out of question. I go further. Assuming for the sake of argument that Malu Singh managed surreptitiously to plant some paddy in some of the lands in dispute, that would not give him such a possession as would justify any Court to give him any right of private defence.

It is preposterous to claim for a judgment-debtor, whose property has been sold in execution of a decree, a right to assault the auction-purchaser who has been put in possession of the property by the civil Court and was protected by the criminal Court in keeping that possession when he goes to the land armed with the delivery of possession and supported by the orders of the criminal Courts.

23. The last order of the criminal Court was on 25th July 1933 when Malu Singh admitted the possession of Barho Babu and undertook not to go near the land. This was just the time when the paddy crop had to be transplanted and I cannot conceive that after all this, Barho Babus men allowed Malu Singh to peacefully plant paddy in the land in dispute. Mr. Jamuar, who has appeared on behalf of the accused has argued that Barho Babu slept over his rights and allowed Malu Singh to continue in possession. This is exactly what Barho Babu never did. He all along asserted his right and possession and whenever he apprehended trouble, he sought protection of the criminal Court and always received it. I am therefore unable to belive that the paddy crop, the removal of which caused this riot, was in fact planted by Malu Singh. Even if it was, it had no effect whatsoever on the possession of Barho Babu under the circumstances of the case.

24. An isolated act of trespass does not constitute possession of the wrong-doer as against the rightful owner in possession. Taking a view most favourable to the accused, there was a struggle for possession and Malu Singh went to take possession by force. Therefore those who wanted to prevent the removal of the crop by force were members of an unlawful assembly and were guilty of rioting. The only question, which now remains to be decided, is which of these accused persons have been proved to have committed the offence of rioting, and whether some of them, who have been charged for specific offences of culpable homicide and hurt, are guilty of those offences, and what punishment they deserve. Out of the 13 persons before us, four persons, namely, Kokil Singh, Bagho Singh, Mata Singh and Sukhdeo Singh, as I have said, were discharged by the committing Magistrate and were found not guilty by the assessors.

25. The evidence against them is not so strong as against the other accused persons, though all of them were named in the first information. Kokil Singh and Bagho Singh are brothers of Malu Singh; Sukhdeo is son of Kokil and Mato is the brother of accused Bansi. In a case like this there is sometimes a tendency to implicate the whole family even if some of them were not present in the riot. No specific act is attributed to them. Witness Karwa Rajwar has stated that Ragho and Kokil struck Prasad Singh, but he did not state this before the police and though he identified Mato Singh and Sukhdeo Singh in Court he did not name them before the police.

26. This witness cannot therefore be relied so far as these four accused persons are concerned. There only remains against these men the evidence of Lachmi Singh, P.W. 4, Nemdhari Pande, P.W. 5 and Gajadhar, P.W. 6. Taking all the circumstances into consideration, I am inclined to accept the opinion of the assessors and give these four accused persons the benefit of doubt and uphold their acquittal.

There remains the case of the remaining nine accused persons. There is an overwhelming mass of evidence against them and nothing has been shown why the witnesses, who have come forward to prove the case against them should not be believed. Bansi Singh has pleaded alibi and called a witness to prove that on 15th November 1933, he was at Nawadah when he purchased a court-fee stamp ticket. Even if this witness be believed, he does not establish alibi.

27. Nawadah is not far away from the place of occurrence, and the witness was not able to give the time. Apart from this, Bansi Singh had no business to purchase the stamp on that day. It was required for a copy, and requisition was not made till the 16th November. I also believe the witnesses when they depose about Mahabir, Bhattu Singh, Shamdeo Singh and Rami Singh beating Bhattu Pasi and Biso Singh, Amo Singh and Kailash Singh assaulting Prasad Singh. The learned Sessions Judge acquitted Shamdeo Singh and Rami Singh of the offence u/s 304, Penal Code. His reasons are not convincing. He has acquitted Shamdeo on the ground that though this accused was mentioned in the first information as being armed with the spear, there is no mention there that he struck Bhattu Pasi, with that weapon. Such details cannot be expected in a first information, and this omission, in my opinion, is no ground for disbelieving those witnesses who prove that Shamdeo Singh did in fact strike Bhattu Pasi with a bhala. A punctured wound was found on the person of the deceased. Rami Singh has been acquitted by the learned Judge on the ground that he was armed with a lathi and struck the deceased with it and this assault could not have been fatal, as only one wound on the head was fatal which was in all likelihood caused by a garasa.

28. Here again the learned Additional Judge is wrong. When more persons than one assault another, the result of which is the death of that man, it is not necessary to prove which particular wound was caused by which particular accused and who inflicted the fatal wound. Such evidence in most cases will not be available. Section 34 has been enacted to prevent miscarriage of justice in such cases. If more persons than one beat a person with dangerous weapons and attack him on the vital part of his body, all of them are responsible for the death which follows if it was caused in furtherance of their common intention. In my opinion therefore Mahabir Singh and Bhattu Singh have been rightly convicted u/s 304, Penal Code.

29. I would also convict Shamdeo Singh and Rami Singh of that offence and set aside their acquittal. The learned Additional Sessions Judge convicted as I have said, Biso Singh and Amo Singh, u/s 324, Penal Code, for causing hurt to Prasad Singh, but he has acquitted Kailash Singh for the offence u/s 326, Penal Code, on the ground that the fact that he assaulted Prasad Singh with a bhala is not mentioned in the first information. For the reasons which I have already given, such an omission is no ground for disbelieving the witnesses who come and prove it. I would convict this accused Kailash Singh of the offence u/s 326, Penal Code, for causing grievous hurt to Prasad Singh and set aside his acquittal of that charge. (His Lordship then passed separate orders on the several accused and the judgment concluded.)

Luby, J.

30. I agree.