Judgment :- 1. This is a revision petition filed by P. W.1 in C. C. 6071 of 1965 on the file of the Sub-Magistrate's Court, Trivandrum-II. The two accused in the case were charged with offences under S.324 and 323 read with S.34 of the I. P. C. The accused were acquitted. The petition challenges the validity of the order. 2. In Chinnaswamy v. State of Andhra Predash AIR. 1962 SC. 1788, the Supreme Court observed: "It is true that it is open to a High Court in revision to set aside an order of acquittal at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of S.439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would coverall contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a companding of the offence, which is invalid under the law" It is in the light of these observations that one has to decide the question whether a case for revision has been made out by PW. 1. 1. PW.1 is the nephew of PW. 2. Accused 1 and 2 are brothers. They were residing in a property south of the property called'Mele Chiravayal Nikathia Purayidom' belonging to PW. 2 The prosecution case is that on 7th November 1965 PWs.1 and 2 went to the above said property for cropping coconuts. PW. 3, the tree climber, and PW. 5, a cooly, were also with them. There is no well-defined boundary demarcating the property of the accused from the property of PW. 2. But there was a channel which it is said is the boundary separating the properties. PW.1 asked the tree climber to climb the three trees in dispute. The accused objected. The 2nd accused pushed PW. 1. The 1st accused gave a blow with an iron rod, M. 0.1, on the head of PW. 1. PW.1 sustained a bleeding injury on the left side of his forehead. PW.1 was taken in a car to the Police Station. From the station he was taken to the hospital and he was in the hospital as an in-patient for 11 days. He gave the first information statement to the police and after investigation by PW. 7, the Sub-Inspector of Police, the accused were charge-sheeted under S.324 and 323 read with S.34 IPC. The prosecution examined 7 witnesses. The 1st accused set up a plea of alibi and the 2nd accused denied the commission of any offence. The court below found that the injury was sustained by PW.1 in the manner alleged by the prosecution, but that the accused were justified in the exercise of their right of private defence of property in inflicting the injury. In Para.26 of the judgment of the court below it is stated, "From the findings already reached it can be seen that there was a dispute for possession of three coconut trees standing just to the south of the channel and the north of the accused's compound. There is no clear boundary to identify the respective properties of the accused and the complainant. On the day of occurrence the complainant and his partisans admittedly five in number had gone to the place and that too to crop coconuts from 15 to 16 trees. There is no clear boundary to identify the respective properties of the accused and the complainant. On the day of occurrence the complainant and his partisans admittedly five in number had gone to the place and that too to crop coconuts from 15 to 16 trees. Evidently the numerical strength of the complainant's party would indicate that they had gone to the place fully prepared to take the yield from the disputed portion." and then the learned Magistrate states that in the circumstances the accused had acted only in exercise of their right of private defence of property and that although the plea of private defence was not set up as such, it can still be considered if such a defence can be made out from the prosecution evidence. 3. Mr. V. Nagappan Nair, appearing for the petitioner submitted that there is no finding as regards the possession of the disputed property or of the three coconut trees from which also the complainant wanted to crop the nuts on the day. His argument was that the finding of the court below that the accused had the right of private defence of property cannot be sustained without a finding as regards the possession of the property or of the trees in question at the material time. He argued that the evidence of P. Ws. 1, 2,3 and 4 would show that the disputed property and the trees were in the possession of P. W. 2 and that there is no evidence to show that the property was in the possession of the accused. 4. As there is no finding as regards the possession of the accused of the property in dispute it is difficult to sustain the finding of the court below that the accused had the right of private defence of property. That the accused disputed the possession of P. W. 2 of the property or of the trees in question would not confer upon them a right to enter the property or object to the yield being taken by P. W. 2 or by P. W.1 under him if it was in the possession of P. W. 2. That the accused disputed the possession of P. W. 2 of the property or of the trees in question would not confer upon them a right to enter the property or object to the yield being taken by P. W. 2 or by P. W.1 under him if it was in the possession of P. W. 2. A person may be under a bonafide misconception as to his possession of a property, and his entry into the property in that belief may not be an offence but that would not warrant the proposition that he has got a right of private defence as against a person in actual possession. S.98 of the Indian Penal Code would show that although a person entering into a property in the possession of another under a misconception may not be guilty of any offence, that would not deprive the right of private defence of property of the person in actual possession. S.98 is as follows: "When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind, or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence." Actual possession is one thing. Bonafide belief that one is in possession is another. If neither party can be held to be in actual possession of the property in dispute and if both parties go armed to have a trial of strength, then neither party can be held to have acted in exercise of the right of private defence irrespective of whether the one or the other party was the aggressor or the first to attack. If, however, a person is held to be in actual possession, he cannot be deprived of his right of private defence simply because he goes determined to defend his property. Without a finding on the question of possession of the property in dispute to say that the accused disputed the possession of P. W. 2, and therefore, they had a right of private defence takes one nowhere. Without a finding on the question of possession of the property in dispute to say that the accused disputed the possession of P. W. 2, and therefore, they had a right of private defence takes one nowhere. I consider a lack of finding on this question a material irregularity in the judgment, analogous to the irregularities mentioned in the Supreme Court ruling referred to above. I set aside the order of acquittal and order a retrial in accordance with law. The petition is allowed in the manner indicated. Allowed.