Gyanendra Kumar, J. - (1.) THE five applicants were sentenced under Section 147 Indian Penal Code to undergo two months rigorous imprisonment and to pay a fine of Rs. 50/ - each under Section 379 I.P.G. In default of payment of fine, they were ordered to undergo one months' further rigorous imprisonment.
(2.) ON appeal, the Sessions Judge, while upholding the conviction of the applicants under Section 147 Indian Penal Code reduced the substantive sentences of imprisonment into those of fine of Rs. 100/ - each and maintained the conviction and sentence under Section 379 Indian Penal Code. The two applicants, namely, Jalai and Kumar were entered as Qabiz in the revenue records over the disputed plot No. 542 measuring 44 acres. Accordingly, they had instituted suit No. 431 of 1961 under Section 229 -B of the U.P. Zamindari Abolition and Land Reforms Act on the allegations that they were Sirdars of the land in question, which was dismissed by the Judicial Officer by his judgment and decree dated 6 -9 -1961. Against the aforesaid decree, the applicants went up in appeal, which was also dismissed by the Additional Commissioner, Gorakhpur, by his judgment and decree dated 7 -7 -1962 on the finding that the possession of the Defendants was recorded from 1354F. right upto 1362F. Thereafter in 1363F., when proceedings under Section 240 -G of the U.P. Zamindari Abolition and Land Reforms Act were being taken the names of both the Plaintiffs were entered in the remarks, column in the Khasra and Khat -auni of that year, i.e. 1370F (1 -7 -62 to 30 -6 -63). Under the circumstances, the learned Additional Commissioner did not rely upon the entries of possession in favour of the accused Plaintiffs and held that the complainant had continued in lawful possession of the dispute ed plot.
(3.) THE accused persons were alleged to have cut away the paddy crop from the plot in question on 18 -11 -1962, that is, more than four months after the decree of the Additional Commissioner. The dispute between the parties had already been finally determined by the decree of a competent court holding the complainant to be the Sirdar in possession of the disputed plot. The accused persons relied upon the entry of being Qabiz in the Khasra and Khatauni of 1370F. which was found to be unreliable by the Additional Commissioner, particularly because the Lekhpal and Qanungo had not been examined to explain as to how the entry came to be made for the first time in that year. It is not the case of the accused that they had come into fresh possession of the plot in the year 1370F. Once the Additional Commissioner had held that it was the complainant who was in possession 0f the disputed plot since the year 1354F., her possession would be presumed to continue till that was definitely proved to have been disturbed by the accused. Such evidence is wanting in this case. In the face of a categorical finding by the Additional Commissioner to the contrary, there could not arise any presumption of possession in favour of the accused merely on the basis of the Qabiz entries in the Khasra and Khatauni made for the first time in the year 1370F. The fact that the accused had cut away the paddy crop on 18 -11 -1962 at 7 A.M. was rightly believed by the courts below on the basis of the evidence on record. The applicants were, therefore, correctly convicted and sentenced under Section 379, Indian Penal Code;