1. By way of this revision petition, the petitioner has assailed judgment dated 19.12.2001 passed by learned Additional Civil Judge (Junior Division) and Judicial Magistrate No. 1, Jaipur District, Jaipur whereby private respondent has been acquitted from the charge of offence punishable under Section 447 IPC observing that the offence has not been proved beyond doubt.

In brief, facts of the case are that on 16.11.1998 Kushal Chand Karnawat (PW-6) submitted a written report (Ex.P-11) to the SHO Police Station Amer, stating inter-alia that on 17.05.1991 he purchased agricultural land in Village Kukas Amer District, Jaipur from the land bearing Khasra No. 87, New Nos. 50, 173, 173/2194 and 50/2195 from Suresh Kumar Agarwal (DW-1) through a registered sale deed. Respondent accused Anand Kumar Dalmia has cultivated this land without permission of the complainant and growing crop of potatoes. He is taking water out of his well and irrigating other lands. Formal FIR No. 336/98 (Ex.P-12) was registered at Police Station Amer District Jaipur. After investigation, charge-sheet was filed against private respondent for offence under Section 447 IPC. Respondent was read over accusation for the offence punishable under Section 447 IPC. Prosecution examined 7 witnesses and exhibited 11 documents. Respondent was examined under Section 313 Cr.P.C. He stated that evidence adduced by prosecution was wrong and witnesses were stating due to enmity. He was innocent. He was wrongly implicated in this matter. He is Managing Director of “MS S. R. Agriculture Ltd.” and having an agricultural land as Khasra No. 87. He along with his wife Bina Dalmia, daugther Manisha, Saroj and other 28 family members are co-sharer in the land. In defence, Suresh Kumar Agarwal (PW-1) was examined but no documentary evidence was exhibited. After hearing both the parties, learned Trial Court passed the impugned judgment dated 19.12.2001.

Learned counsel for the petitioner submitted that as per site plan Ex. (P-2) he was in possession of the disputed land. There is a structure of house and a store situated on the land. Complainant Kushal Chand Karnawat (PW-6) Purchased this land from Suresh Kumar Agarwal (DW-1) through registered sale deed (Ex. P-7). Respondent Anand Kumar Dalmia had no objection on this transaction as proved by affidavit EX. (P-9). Sumeti Ranka (PW-2) Narayan Singh (PW-3) and Gyan Chand (PW-4) are corroborating the fact of possession of the complainant. Though partition of Khasra No. 87 is yet to take place, yet all the co-sharers are in physical possession of the irrespective shares. Learned Trial Court did not appreciate the evidence adduced by the prosecution in right perspective. There is no this on record to disbelieve the possession of the petitioner. Learned counsel has placed reliance on Shradhakar Patel V/s Dahi Negi 1983 CRI. L. J. NOC 177 (Orrisa) and 1983 CRI. L. J. NOC 178 (MAD: 1983 Mad LW (Cri) 59.

Learned counsel for the private respondent submitted that unless partition under Section 53 of the Rajasthan Tenancy Act is carried out, every co-sharer has got tenancy right on every inch of the undivided land. Neither in sale deed (Ex.P-7) nor in affidavit (Ex.P-10) find any mention about a particular portion of the land of Khasra No. 87, which was sold and possession was handed over to the complainant. Witnesses examined by the prosecution have also admitted in cross-examination that there is no demarcation of the land of the complainant. Learned trial Court has passed a reasoned and cogent judgment and there is nothing on record for giving indulgence by this Court.

We have considered the rival submissions and gone through all the material available on record.

As per registered sale deed (Ex.P-7), Suresh Kumar Agarwal (DW-1) sold his 1/40 share in a land bearing Khasra No. 87 admeasuring 40 Bigha and 17 Biswa but no where it has been mentioned that apportionment of the land in accordance with the shares of all co-sharers were made. In affid