1. This is an application against the conviction and the sentence of fine of Rs. 30 passed on the petitioner under s. 426 (mischief) and s. 447 (criminal trespass) of the Indian Penal Code by the Magistrate of Daltonganj exercising Third Class powers, by his order of the 26th August, 1927. The conviction and the sentence have been upheld by the Officiating Deputy Commissioner of Palamau by his order, dated the 18th November, 1927.
2. The petitioner is the landlord of the land in dispute. Sheosaran Singh (D.W No. 7) was a raiyat of the land.
3. The complainant Hulsan Chamar was an under-raiyat under Sheosaran Singh. Sheosaran Singh surrendered the land in favour of the petitioner on the 21st Jaith 1334 (corresponding to 6th June, 1927). The petitioner as landlord settled the land with Ram Krishna Ganderi and Bhadai Ganderi. The case of the complainant is that on the 18th July, 1927, the petitioner with, the aforesaid Gan-deris came to the-land and ploughed it and uprooted the seeds which were already cast on the land by the complainant.
4. The status of the complainant in the land is not disputed. He was an under-raiyat holding the land under Sheosaran Singh, the raiyat thereof. His right in the land was created by Sheosaran Singh and was co-extensive. Sheosaran Singh surrendered the holding. There was no relationship of any kind between the complainant and the petitioner, the superior landlord. Only Sheosaran Singh being the raiyat of the land and the ielationship of landlord and tenant between him and the petitioner stood in the way of the petitioner getting khas possession of the land. Sheosaran Singh having surrender-ed the holding at the end of the agricultural year, the petitioner-landlord was entitled under s. 72, cl. (4) of the Chota Nagpur Tenancy Act to “enter on the holding and either let it to another tenant or take it into cultivation himself.” In the present case he exercised his right by letting it out to the aforesaid Ganderis.
5. The complainant in his evidence admits that the “two Ganderis have been settled by the accused.” He admits that they are not his servants or men. Therefore, the petitioner accepted the case of the prosecution. He went to the land not with a view to take khas possession thereof, but to see that his lessees, the two Ganderis get possession of the land. The complainant says that the petitioner cultivated the land with the help of the Ganderis, which supports the view that the land was not intended to be taken khas possession of by the petitioner but that the Ganderis had obtained lease of the land and were trying to obtain possession thereof and the landlord helped them, which he was bound to do having settled the land with them.
6. The learned Deputy Commissioner does not dispute the right of the petitioner-landlord to take possession of the land, but he says that he is not “entitled to enter forcibly upon the land if the undei-raiyat opposes.” Further he says that “the proper course for appellant should have been to have brought an ejectment suit against the respondent for the holding in question.” Clause (4) of s. 72 of the chota Nagpur Tenancy Act does not require that he should bring an ejectment suit. It gives him a right to enter on the laud and either to let it to another or take into cultivation himself. Under-raiyat “has been defined in a. 4, el. (3) of the Chota Nagpur Tenancy Act to be a tenant holding whether immediately or mediately under a raiyat. An xmdev-raiyat is a tenant different from the other classes, such as, an occupancy raiyat, non-occupancy raiyat, etc. There is no provision in the Act prescribing the mode of ejecting an under-raiyat such as in the case of other kinds of raiyats notably non-occupancy raiyats. No notice or any formality is required to eject an umder-raiyat, vide Guru Charan Hajjant v. Suklal Hajam(1), Ram Narain Sahu v. Maangru Urao(2), Ram Krishna Singh v. Emperor(3) and Jang Bahadur Singh v. Emperor(4). The ejectment of an under-raiyat will be governed by the common law. He will be treated merely as a tenant-at-will, Bridge's Survey and Settlement Report of Palauiau District (1913-20), para. 251, page 105, also supports this view. The landlord is not bound to take notice of an nadei-raiyat because he is not supposed to have been brought on the land by him and he can ignore him and the moment he acquires a right to enter upon the land he can do so inspite of the land having been previously in possession of an undev-raiyat. After the surrender by the raiyat of his holding, the right of an under-raiyat ceases and his position becomes that of a trespasser, so far as the landlord is concerned.
7. Therefore the action of the landlord in the present case in letting out the land in question to the Ganderis and in trying to Bee that they get possession of the land was a bona fide claim of right and so he cannot be convicted of criminal trespass or mischief.
8. The conviction of and the sentence passed on the petitioner are set aside, and the fine, if realised, will be refunded.
9. Conviction set aside.