JUDGMENT : J.M. Mahapatra, J. - The revision is directed against the judgment and order dated 7-3-1987 of the learned 1st. Addl. Sessions Judge, Cuttack, convicting the petitioner Judhistira Naik (P-1) u/s 324, I. P. C. and sentencing him to undergo rigorous imprisonment for two years, and convicting the petitioner Ratnakar Naik (P-2) u/s 326, I. P.C. and sentencing him to undergo rigorous imprisonment for four years, while setting aside the conviction of both the petitioners u/s 307, I. P. C. passed by the Asst. Sessions Judge, Cuttack. 2. Put briefly, the prosecution case may be stated as follows. Both the petitioner and members of the prosecution party, namely, P. Ws. 1, 7 and 6 are the adjoining land owners having a common ridge in between their fields running from north to south. The prosecution party purchased their land lying to the east from one Ajit Kumar Sur, and the petitioners were Bhag Chasis under Ajit Sur in respect of the lands possessed by the petitioners to the west of the ridge. Both the parties had series of litigations in different Courts over the ridge, the members of the prosecution party claiming lands to the further west of the ridge, i. e, some lands lying on the side of the petitioners and possessed by them. On 2-5-1982 P. Ws 1 and 7 along with their field servants demolished the common ridge and wanted to put up a new ridge to the west of the existing ridge as per the decision of the Panchayat. The petitioners came and protested. This led to exchange of words between both the parties. It is alleged that P-1 attacked the informant. P. W. 1, with a knife casing incised wound on his head. When P. W, 7 came to the rescue of his brother, P. W. 1, P-2 assaulted him on his head by means of a spade, as a result of which P. W. 7 sustained bleeding injuries on his head and fell down unconscious on the ground. Information was lodged at Cobindpur police station on 4-5-1982 at about 9 AM. P. W. 9, the Officer-in-charge, Cobindpur police station, registered a case against the petitioners on the basis of the F. I. R., Ext. 1 and took up preliminary investigation of the case. Information was lodged at Cobindpur police station on 4-5-1982 at about 9 AM. P. W. 9, the Officer-in-charge, Cobindpur police station, registered a case against the petitioners on the basis of the F. I. R., Ext. 1 and took up preliminary investigation of the case. He directed the A. S. I. of Police, P. W. 10 to investigate into the case, in course of which he sent requisition for examination of the injured persons, P. Ws. 1 and 7 and he also made some seizures, such as, weapons of offence, and on completion of investigation, P. W. 9 submitted charge sheet against the petitioners. 3. The plea of the two petitioners at the trial is one of denial. Both the petitioners denied to have assaulted the injured. The specific defence case is that while P. Ws, 1,7 and others were demolishing the intervening ridge, P-1 protested and at this the members of the prosecution party abused him, and Lochan Biswal dealt a knife blow on the face of P-1 and thereafter P-1 brandished a spade in self-defence. At that time P. Ws. 1 and 7 assaulted on the leg of P-1 with lathis as a result of which he fell down. The other members of the prosecution party pelted brick-bats causing injuries on P-1. When P-2 came to the rescue of P-1, Lochan assaulted P-2 with a knife. P-1 had filed a police case against Lochan, Gagan and other members of the prosecution party. In short, the case of the petitioners is that their action was justified in exercise of their right of private defence to person and property. 4. In support of its case prosecution has examined 11 witnesses in all, of whom P. W. 1 is the informant and the injured, P. W. 7 is his brother, another injured, while P. Ws. 3, 5 and 8 have been examined as eye witnesses, P. Ws. 2 and 6 have been examined as post occurrence witnesses, P. Ws. 4 and 11 the doctors who had examined the injured, and P. Ws. 9 and 10 are the Investigating Officers. The petitioners have also examined three witnesses in their defence. 5. The 'earned Court below while accepting the prosecution case found that although admittedly there was dispute between the parties and litigation was pending over the common ridge between their helds, and that at the material time, P. Ws. 9 and 10 are the Investigating Officers. The petitioners have also examined three witnesses in their defence. 5. The 'earned Court below while accepting the prosecution case found that although admittedly there was dispute between the parties and litigation was pending over the common ridge between their helds, and that at the material time, P. Ws. 1 and 7 with the help of their field servants were demolishing the common o ridge, the petitioners ware the aggressors and they started the assault, and that the story of defence that the members of the prosecution party started the assault on the petitioners and in self defence the petitioner Judhistira whirled a spade and thereby caused injuries on P. Ws. 1 and 7 was not acceptable. On these findings, the learned Sessions judge held that as the accused persons were the aggressors and they started assault, they cannot claim any right of private self-defence. He, however, watered down the gravity of the offence on the finding that the occurrence took place on the spur of the moment and a single blow was given by a knife on the head of P. W. 1 by petitioner Jadhistira causing, simple injury and another single blow was given by petitioner Ratnakar on the head of P. W. 7 resulting in grievous hurt/He thus altered the conviction from u/s 307, I. P. C to Under Sections 326 and 324, I. P. C. 5. During the hearing of the appeal, Mr. Mohanty, the learned counsel appearing for the petitioners, while drawing my attention to some of the admitted features of the case, particularly the fact that the petitioners-were in possession of the land and that the common ridge was demolished, and the further fact that the members of the prosecution party stealthily and behind the back of the. petitioners cut down the "ridge and wanted to put a new ridge on the land of the petitioners lying to the adjoining' west, contended that the petitioners cannot be said to be not entitled to the exercise of the right of private defence of property. Before taking up the question as to how the assault started, it would be profitable to advert to some of the salient features in the evidence of prosecution. Before taking up the question as to how the assault started, it would be profitable to advert to some of the salient features in the evidence of prosecution. With regard to the genesis of the case it appears from the evidence of P. W. 1 that they purchased the land in question from one Ajit Kumar Sur and the sale deed indicated the purchased area to be Ac. 1. 75 decimals, and the lands were situate at two places, Ac. 1 acre at one place and 75 decimals at another place. He could not give the area of the land of the petitioners adjoining their land, but one of their kiaries adjoins one kiari and the western ridge of their kiari was in dispute. It further transpires that Ajit Kumar, Sur was the owner of the land adjoining their land and the accused persons were . Bhag tenants in respect of that land. According to P. W. 1 there was a Panchayat to resolve the boundary dispute between both the parties, and that there was measurement in presence of both parties on 1-5-1982, and that the western boundary of the plot of P. W. 1 was found to be 4 to 5 cubits from the west of the common ridge and it was decided that the western ridge of their plot would be shifted on the next day. P. W. 3, one of the members of the Panchayat however does not support P. W. 1. He stated that it was decided in the Panchayat that the land would be measured and the boundary would be fixed and thereafter cases between the parties would be withdrawn, P. W. 3 was a Bhadralok in the Panchayat according to P. Ws. 1 and 7. Admittedly both the parties were in litigation at the material time and several cases were pending with regard to the boundary of the land possessed by both the parties on either side of the boundary ridge. In other words, the entire evidence not only of P. W. 1 but also of others indicate that the land situate to the west of the boundary ridge was in possession of the petitioners who were the Bhag tenants of Ajit Kumar Sur, the vendor of P. Ws. 1 and 7. It was on this back-ground that the incident that took place has to be appreciated. 6. 1 and 7. It was on this back-ground that the incident that took place has to be appreciated. 6. It is the admitted case of the prosecution that during the absence of the petitioners, P. Ws. 1 and 7 along with their labourers were cutting and demolishing the boundary ridge lying between the lands of both the parties, and that they wanted to put up a fresh boundary ridge 4 to 5 cubits apart to the west of the boundary ridge admittedly on the land in possession of the petitioners. If according to P. W. 3, a Bhadralok of the Panchayat, the land was to be measured in presence of both the parties and boundary was to be fixed, the action of P, Ws. 1 and 7 to demolish the boundary ridge in the absence of the petitioners and Bhadroloks cannot be said to be an act which justified their action and conduct. Their intention was to grab the land of the petitioners and show at the time of measurement that they possessed the land beyond the boundary ridge, that is some land admittedly in possession of the accused persons. In other . words, they wanted to forcibly possess some lands already in possession of the petitioners for a number of years. In this state of affairs the question is, whether the petitioners are entitled to exercise their right of private defence of property. In a Full Bench decision of this Court reported in State of Orissa Vs. Rabindranath Dalai and Another it is held thus: "A person in possession when attacked by trespassers is entitled to maintain his possession and drive away the aggressors by use of force without applying for protecting of public authorities. Where the person in physical possession his been dispossessed by the trespasser, he is even entitled in exercise of the right of private defence to drive away the intruder provided there has been no acquiescence to such dispossession and the trespasser has not obtained settled possession over the property. Here also there is no duty to run for protection and thereby allow the trespasser to have settled possession over the property. Here also there is no duty to run for protection and thereby allow the trespasser to have settled possession over the property. Where the accused is in physical possession of the property but at the moment of attack he is not present at the spot, on coming to know that the trespasser is getting into possession of the same or attempting to do so, is entitled to come to the spot with necessary force to repel the entry and turn away the aggressor. The law does not require a person in possession of the property to run away or retire in the face of attack on it, to ask for protection of public authorities. If a reasonable apprehension of imminent danger to the property has commenced, the exercise of right of private defence is available. At such point of time no duty is cast on the accused to run for protecting of public authorities." 7. Considering the facts of the present case in the light of the principles laid down in the aforesaid decision, I have no manner of doubt that the petitioners, in consideration of the facts and circumstances of the case were entitled to exercise the right of private defence of property, and in such exercise they were entitled to inflict injury short of death on the persons of P. Ws. 1 and 7 to detract them from acting in a high-handed manner to demolish the common ridge and to put a new ridge some 5 cubits apart on the land in possession of the petitioners. The factual aspects of the case as discussed earlier would clearly indicate that both the parties were in litigation, and that the petitioners were in possession of the land as Bhag tenants of Ajit Kumar Sur, the vendor of P. Ws. 1 and 7. In such state of affairs, the petitioners were entitled to prevent their property from trespass and high-handed action from the strangers. Their action in causing injuries on the persons of P. Ws. 1 and 7 cannot, therefore, be said to be unjustified, nor can it be said that they were the aggressors. 8. The concurrent findings of fact are that the accused petitioners first started the assault," and were thus the aggressors and as such the right of private defence of person was not available to the petitioners. 1 and 7 cannot, therefore, be said to be unjustified, nor can it be said that they were the aggressors. 8. The concurrent findings of fact are that the accused petitioners first started the assault," and were thus the aggressors and as such the right of private defence of person was not available to the petitioners. The defence case that the petitioners on being assaulted by the members of the prosecution party started counter assault was negatived by both the Courts below. I do not propose to interfere with the aforesaid findings of fact. The learned Court below however had failed to take notice of the right of private defence to property which was available to the accused petitioners in the facts and circumstances discussed earlier. The law is well-settled that even if a legal plea such as the right of private defence to property or the right of private defence to person has not been specifically taken during the trial of the case, such a plea is available to be raised before the appellate Judge, or even before a higher forum. In this view of the matter, I would hold that although the petitioners have not successfully established that they were entitled to the exercise of the right of private defence to their persons, they were certainly entitled to the right of private defence to property, as indicated by me in the preceding paragraph. Such being the position, the petitioners cannot be fastened with any criminal liability for having committed offences unoer Sections 324 and 326, I.P.C. 9. In the light of my discussions in the foregoing paragraphs, I would hold that the conviction of the petitioners cannot be sustained. The revision is accordingly allowed and the order of. conviction and sentence of the petitioners is set aside. The petitioners be discharged from their bail bonds. Final Result : Allowed