1. This petition arises out of conviction of the petitioners Nefazuddin Mondal and 17 others under section 427, P. P. C. And sentence of a fine of Rs. 50 in default, to rigorous imprison--ment for two months each by Mr. A. U. Mondal, Lawyer Magistrate, Ist Class, Dinajpur. The petitioners preferred, a revisional application before the Sessions Judge of Dinajpur who rejected the same. Hence this application.
2. The prosecution case is that the complainant Mofizuddin Molla was in possession of the disputed land measuring about 1 acre on the northern side Plot No. 175 of Mouza Madhya Durgapur and that the accused petitioners entered into the disputed land on 3rd Agrahayan, 1373 B. S. Corresponding to 19-11-66 and took away his unripe paddy therefrom causing loss of about Rs. 400. They were charged under section 427, P. P. C. To which they pleaded not guilty. The defence case was that they were in possession of the disputed land and had grown the paddy which they took away. The learned Magistrate upon evidence on record found the petitioners guilty and convicted and sentenced them as stated above.
3. Mr. Abdul Hamid, learned Advocate appearing on behalf of the petitioners contended that the petitioners asserted bona fide claim of right in the disputed land which is supported by documentary evidence on record and as such the conviction and sentence passed under section 427, P. P. C. Is bad in law and cannot be sustained. As already stated the disputed land measures 1 acre and lies on the northern portion of Plot No. 173 of Mouza Madhya Durgapur within P. S. Parbatipur. The complainant party claims possession of the entire plot which measures 3.72 acres.
4. This land admittedly belonged to the Government and used to be leased out by the Government. It appears from the order dated 23-5-66 passed by the Joint Deputy Commissioner of Dinajpur Exh.
5. C that on a perusal of the report of the Circle Officer (Revenue) Parbatipur he held that out of 3.72 acres of land of Plot No. 175, 1.71 acres were settled with Mofizuddin Mollah Le. The complainant for the year 1367 to 1372 B. S. And he was in unauthorised possession of the remaining 2.0 acre land.
6. The joint Deputy Commissioner, therefore, gave settlement of 2.72 arces of land from the southern side of the plot to Mofizuddin Mollah for the year 1373 B. S., and the remaining 1 acre land on the northern part namely, the disputed land, temporary settlement for the year 1372 B. S., to Abdul Aziz who is one of the petitioners. This order of settlement was communicated to Abdul Aziz by the Circle Officer of Parbatipur on 16-6-66 vide Exh. B and on 21-7-66 Abdul Aziz paid the rent of Rs. 15, in lieu of produce as fixed for the year 1373 B. S. It therefore appears that the defence case that the disputed land was in possession of the accused petitioner during the year 1373 B. S. Is supported by unimpeachable documentary evidence.
7. Mr. A. Malek, the learned Advocate appearing on behalf of the complainant opposite-party invited my attention to copy of the order of the Additional Commissioner, Rajshahil Division dated 14-7-66 Exh. I to show that the order of settle--ment granted in favour of the accused petitioners had been stayed by the Additional Commissioner, Rajshahi Division, There is no paper on record to show that this order of stay was communicated in time either to the joint Deputy Com--missioner, Dinajpur or to the accused petitioner Abdul Aziz, Since it appears that Abdul Aziz actually paid rent in respect of the disputed land on 21-7-66 i.e. 7 days after the passin of the order of the Additional Commissioner, Rajshahi Divi--sion. It is evident that the order of stay of further proceeding in the matter of settlement of the disputed land with Abdu Aziz could not be given effect to. It is also interesting to note that none of the rent receipts Exh. 2 series filed by the complainant party shows payment of rent in respect of the disputed land by the complainant party for the year 1373 B. S. The alleged occurrence is said to have taken place in the month of Agrahayan 1373 B. S. Thus it appears that prima facie the accused petitioners were in possession of the disputed land during the period in question, i.e. 1373 B. S. And the assertion of bona fide claim of right by the accused is clearly tenable and in that view of the matter the conviction of the petitioners under section 427, P. P. C.
8. Cannot be sustained.
9. The Rule is accordingly made absolute. The conviction and sentence passed against the petitioners, under section 427, P. P. C. Are set aside and they are acquitted of the charge.