JUDGMENT : Narasimham, C.J. - This is a revision against the appellate judgment of the Additional Sessions Judge of Puri maintaining the conviction of the four Petitioners under Sections 447 and 371 I.P.C. but reducing the sentence passed on them, by a Third Class Magistrate of Nayagarh to a fine of Rs. 50/- on each count. 2. In village Nandighore, P.O. and P.S. Orgaon of Nayagarh Sub-Division, there is a Temple of Sri Jagannath Jew which had certain properties. Plot No. 1246 is the Bijesthali of the Deity. To the adjacent south of that plot is plot No. 1247. The complainant (opposite party), Banka Nidhi Praharaj (p.w. 1) was the marfatdar trustee of the aid Deity and of the suit properties for a very long time and in that capacity he used to lease out the temple lands to several cultivators. His case further was that he was in actual possession of the whole of plot No. 1247, and of about 5 cents of plot No. 1246 which he had amalgamated with plot 1247 and enclosed by a fencing. He further alleged that he had constructed a garden house inside the fencing and that the house was partly in plot No. 1247 and partly within the five cents of plot No. 1246. He stated that he had kept some agricultural implements in that garden house. 3. In an appropriate proceeding under the Orissa Hindu Religious Endowments Act, Sri Banka Nidhi Praharaj (opposite party) was removed from his office as trustee of the said Deity by the Assistant Commissioner of Endowments and Petitioner No. 1 Sribatcha Patnaik was appointed trustee in his place. Then, on the 21st October 1955, the Assistant Commissioner issued a writ of delivery of possession of the Temple and its properties as described in the schedule attached to the writ, to the new trustee Sribatcha Patnaik. But in that writ (Ext. 1) he took care to make the following orders: The persons cultivating the lands as bhagchasis under the ex-marfatdar and the person in management Sri, Banka Nidhi Praharaj, should not be physically evicted from possession but should be allowed as tenants of the Deity under the new trustee. If Sri Banka Nidhi Praharaj has been holding the lands as a sub-tenant under the Deity, then his tenancy right be disturbed. If Sri Banka Nidhi Praharaj has been holding the lands as a sub-tenant under the Deity, then his tenancy right be disturbed. The order of the Assistant Endowments Commissioner is thus very specific on the question that though delivery of possession of the temple and its properties should be handed over to the new trustee, namely Sribatcha Patnaik, if other persons are found to be in actual possession of the Temple lands as bhag chasis by reason of their having taken leases from the previous trustee, namely Sri Banka Nidhi Praharaj, they should not be evicted from those lands. Similarly, if the previous trustee Sri Praharaj was also found to be in possession of any lands belonging to the Deity as a lessee that possession should not be interfered with. In respect of these lands the possession of the new trustee would be only symbolical. The writ was in due course executed on the spot on the 12th November, 1955. Ext. A is the report of the officer of the Endowments Department who executed the writ. Unfortunately there is no mention in that report as to which was the plot, in respect of which the new trustee Sribatcha patnaik was given symbolical possession and which was the plot in respect of which actual delivery of possession was given to the new trustee. 4. The complainant's case seems to be that notwithstanding the due execution of the writ of delivery of possession at the spot on the 12th November, 1955 his actual possession of the area enclosed by a fence (measuring 20 cents in all, i.e. 15 cents in plot No. 1247 and 5 cents in plot No. 1246) remained undisturbed; and that the garden house inside that area also continued in his possession. According to him, on the 7th August 1955 the four Petitioners, taking advantage of his temporary absence from the village, committed criminal trespass inside the fenced area, pulled down the garden house completely and dishonestly removed several agricultural implements kept there including a plough, a yoke, a rope, door and doorframe, and that they also damged the blackgram seeds sown on the land. 5. The Petitioners' defence was one of complete denial. 5. The Petitioners' defence was one of complete denial. They alleged that there was bitter enmity between the complainant (who was the previous trustee) and Petitioner No. 1 (who was the new trustee) and on account of this enmity this false case was foisted against them. They emphatically denied that there was any garden house over the disputed plot. According to them the area of five cents forming a part of plot No. 1246 was mere vacant land which, after the execution of the writ of deliver'y, came into the possession of Petitioner No. 1 as the new trustee. The Petitioners did not put forward any claim in respect of plot No. 1247. 6. In a dispute of this type there are obviously two questions for decision: (i) whether the prosecution has established beyond reasonable doubt that the complainant was in possession of the land on which criminal trespass was alleged to have been committed; and (ii) whether the complainant has proved beyond doubt the existence of the garden house on the disputed land and the removal of the articles from the said house, including the door and the door frame, by the Petitioners. 7. The lower court has not made a careful scrutiny of the evidence with a view to satisfy itself about the adequacy of the evidence in respect of the aforesaid two questions so as to sustain a convection on a criminal charge. 8. As regards the first question the burden is heavy on the complainant to establish beyond reasonable doubt that the said five cents formed a part of his garden house and were excluded from the operation of the writ of delivery of possession. As the previous trustee of the Deity he was undoubtedly in possession of the entire properly. But the writ directed that delivery of possession of this property should be made to the new trustee, excluding of course those lands which were in the possession of the ex-trustee as a tenant. It will not suffice therefore for the complainant merely to say that he was all along in possession of the five cents in plot No. 1246. But the writ directed that delivery of possession of this property should be made to the new trustee, excluding of course those lands which were in the possession of the ex-trustee as a tenant. It will not suffice therefore for the complainant merely to say that he was all along in possession of the five cents in plot No. 1246. He must further establish that he was in possession of that portion of the plot as a lessee under the Deity, in this case strangely enough, none of the prosecution witnesses (except the complainant brother P.W. 1 including the complainant himself has ever stated that the said five cents were in the possession of the complainant as a lessee under the Deity. The complainant himself has not put forward any such claim and even when the case was remanded by this Court to the appellate court for taking additional evidence on this question he did not state a word about it. The other witnesses have mechanically stated that the complainant was in possession-which may not mean anything because admittedly when he was the trustee he was in possession of all the properties of the Deity including the five cents. The lower appellate court's approach to the entire question was vitiated by its failure to appreciate that in a criminal case u/s 447, Indian Penal Code the burden of proving that the complainant was in possession of the land beyond reasonable doubt can never shift on to the accused. That court examined the evidence of the defence witnesses including that of the new trustee (Petitioner No. 1) in an over-critical manner and came to a finalising that 'that there is no sufficient oral evidence of persons actually present at the delivery of possession, in order to prove that actual physical possession of the land in dispute was delivered to the trustees (meaning the new trustees)'. This is not a case u/s 145, Code of Criminal Procedure where each party has to prove his possession of the disputed property. The fact that delivery of possession was effected at the spot by an officer of the Endowments Department is beyond dispute. The complainant himself in his cross-examination admitted that he was in his village when the Endowments Inspector came there to deliver possession. The fact that delivery of possession was effected at the spot by an officer of the Endowments Department is beyond dispute. The complainant himself in his cross-examination admitted that he was in his village when the Endowments Inspector came there to deliver possession. Hence it must be held that from that date (12th November 1955) all the lands of the deity except those that had been taken lease of by the ex-marfatdar, were duly delivered to the new trustee. The absence of any reliable evidence on the side of the complainant about his taking lease of five cents in plot No. 1216 must therefore lead to the inference that delivery of possession of that area also was made to the new trustee. There can therefore be no question of the Petitioners committing criminal trespass over that portion of the land. The charge u/s 447, Indian Penal Code must fail. 9. Next comes the charge u/s 379, Indian Penal Code. His Lordship discusses the evidence regarding the existence of the garden house.... 10. The aforesaid finding will be fatal to the charge u/s 379, Indian Penal Code. If the existence of the garden house is itself doubtful, there can be no question of removal of any articles from that house. 11. I therefore allow this revision petition, set aside the conviction and sentence and acquit the Petitioner. Final Result : Allowed