JUDGMENT

Agarwal, J - This is an application for revision by five persons who were convicted under Section 447 and sentenced to pay a fine of Rs. 30 each. The applicants first moved the Additional Sessions Judge of Lucknow but he refused to interfere. The case was started on the complaint of one Radha Krishna that the accused had trespassed on 2 biswas of land in plot No. 482. The accused's plea was that the land was appurtenant to a temple and they as members of the Hindu public had a right to go upon the land. It is not denied that Radha Krishna was the under-proprietor of plot No. 319 having an area of 1 bigha 16 biswas at the time of the first settlement. Two biswas out of this area were uncultivated and 1 bigha 14 biswas were under cultivation. In 1928 the khasra of the abadi was prepared and the original plot No. 319 was divided into two plots 1404 and 1403. 1404 corresponds to 482 and 1403 to 483 of khasra kishtwar; 1404 was shown in the possession of Radha Krishna and Sri Krishna his brother and the temple was shown in No. 1403 corresponding to 483. The temple is in 483 and the land in dispute in 482. Radha Krishna no doubt stated that the temple was in 482 but the statement of the patwari and the other documentary evidence on the record clearly shows that he was wrong.

2. The learned Magistrate found that it was proved by oral evidence that plot No. 482 has always been in the cultivation of and in the possession of the complainant through his tenants or licensees and it was not disputed by the accused before the learned Sessions Judge that one Ghirrau was in actual possession of the 2 biswas of land in question. There may have been 2 biswas of uncultivated land at the time of the former settlement but it has not been shown that it was appurtenant to the temple. There is a temple chabutra, and well on the land. There is also the house of Ghirrau on a portion of it and it is possible that at the time of the former settlement also some land may have been left for the house of the tenant. In these circumstances it cannot be said that the 2 biswas of uncultivated land meant the land on which the temple was built and was appurtenant to it. The Hindu public could not, therefore, be said to have any bona fide claim to these 2 biswas. Their intention in trespassing could only be to annoy the complainant Radha Krishna. It has been argued that as Radha Krishna has let the land to one Ghirrau so the annoyance to Radha Krishna is not sufficient for the conviction of the applicants. Section 441 defines criminal trespass thus:

Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit any offence is said to commit criminal trespass.

3. It is argued that as the land is in the physical possession of Ghirrau, so the annoyance to Radha Krishna is immaterial. Radha Krishna is the proprietor of the land and as the trespass was committed with a claim to the land, the intention must have been to cause annoyance to Radha Krishna also. He can be said to be the person in possession of such property. A person may be in physical possession of the property or he may be in possession through his licensee or tenant. Reliance is placed on certain cases on behalf of the applicants. The first is Bismillah v. Emperor ('28) 5 O.W.N. 598. In that case the complainant was given joint possession along with the brother of the accused. The complainant in that case was not in exclusive possession and the alleged trespassers were the brothers of one of the joint owners. It was held that no trespass was committed. That case is quite distinguishable from the present one. The other case cited is Moti Lal v. Emperor, A.I.R. 1925 All. 540. In that case the complainant had not been ab