Proceedings under Section 107, CrPC, are not intended for binding over persons who act in the exercise of their right to property or in pursuance of a bona fide claim of right to property.

Sarjoo Prasad, J.

1. This application 13 directed against an order of Mr. Muhammal Anwar, Magistrate 1st Class of Khagaria dated 14th December 1949, directing the petitioners to execute bonds of Rs. 2000 each with two sureties of the like amount to keep the peace for a period of one year under Sec.107, Criminal P. C. and on their failure to execute the bonds in question to suffer simple imprisonment foe one year each. This order binding over the petitioners under Sec.107 of the Code has been affirmed on appeal by Mr, Basu Prasad, and Additional Sessions Judge of Monghyr. Petitioners 1 and 2 are brothers, whereas the other two petitioners are the sons of petitioner 1.

2. The proceedings to which this application relates were started against the petitioners on the basis of a complaint filed on 30th November 1943. by the opposite party in which they alleged that five days before the date of the application the petitioners had gone to a certain field and ploughed the land in spite of the remonstrance of the complainant. The field in question relutes to khata no. 76 khasra No. 100 having an area of about 9 bighas 5 khatas 7 dhurs. In the record-of-rights the khata in question has been recorded as ghair mazrua am and parti-ka-dim. The Case of the opposite party is that the lands in question are used by the people of the village as pasture lands as also as passage for the villagers, and that the opposite party are wrongfully claiming possession of the said lands.

3. The case of the petitioners is that 8 bighas 14 kathas out of the lands in question had been settled with them in December 1942 by the Shekhpura Court of "Wards of which they have been in cultivating possession ever since on payment of rent to the landlord. They have also produced receipts in support of their alleged possession which are on the record of this case. Their case also is that the other portion of the lands had been settled with other tenants of the Shekhpura Wards Estate, and those tenants have been in cultivating possession of the remaining landa since 1927 or 1928 and have been paying rent to the landlord for which also receipts have been filed in this case. The petitioners, therefore, laid claim to the lands on the basis of the settlement alleged by them. They further stated that in 1941 there was a dispute regarding the landa leading to a panchayat, and in the panchayati the panches made the petitioners agree to this that they should keep possession of 5 bighas 6 dhurs of the land settled with them and give up possession of the rest of the area in favour of the Bhagwati Asthan.

4. In support of the respective case of the parties both oral and documentary evidence was adduced, the complaint having examined five witnesses and the petitioners eight witnesses in support of their case of possession and cultivation of the lands, Besides, as I have said they also filed documentary evidence. The learned Magistrate came to the conclusion that the petitioners had failed to establish their case of possession and cultivation of the land, and that, therefore, they should be bound over as directed by his order in revision. The lower appellate Court has affirmed that judgment on the assumption that the land was ghairmazrua-am land, and the petitioners had failed to establish their passission of the lands in question by virtue of the alleged settlement. It is extraordinary to find that the learned Judge in appeal does not even condescend be discuss the evidence given by the defence witnesses in support of the case of the petitioners possession over the disputed land. He also ignores consideration of the fact that the petitioners were not laying claim to the entire area of the khata of 9 bighas 5 kathas and 7 dhurs, but only in respect of the area settled with them where as the case of the petitioners was that the rest of the area was in possession of other tenants who bad been in cultivating possession thereof and had been paying rent to the landlord. The only wa