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Allahabad High Court · body

1965 DIGILAW 189 (ALL)

Sirajuddin v. Dharma

1965-05-12

C.B.CAPOOR, H.C.P.TRIPATHI

body1965
JUDGMENT Tripathi, J. - Criminal Appeal No. 2150 of 1963 and Criminal Revision No. 1357 of 1963 arise out of a common judgment and therefore are being disposed of together. 2. The learned Bench Magistrate at Agra convicted the Respondents u/s 448, I.P.C. and sentenced them each to undergo simple imprisonment for three months and also to pay a fine of Rs. (sic)200/- each. In default of payment of fine each of them was to undergo one month's further simple imprisonment. Respondent Prem, however, was given the benefit of First Offenders Act and was directed to be released on probation of good conduct. 3. The. learned Bench Magistrate also passed an order purporting to be u/s 522 (1) of the Code of Criminal Procedure directing the possession of the property in dispute to be restored to the Appellant. 4. On an appeal the learned Sessions Judge, set aside the conviction of the Respondents and directed their acquittal. He also quashed the order of the Magistrate passed u/s 522, Code of Criminal Procedure and directed that the possession of the Respondents over the property be restored to them. This appeal by leave is directed against the appellate order of acquittal passed by the learned Sessions Judge and the revision is directed against his order setting aside the order of the Magistrate passed u/s 522, Code of Criminal Procedure 5. The facts of the case lie in a short compass. Complainant Sirajuddin obtained a decree from the court of Munsif, Agra, on the 31st of March, 1959, against Respondent No. 1 for arrears of rent and for ejectment from the plot mentioned in the plaint. This decree was put into execution and Raghubir Prasad (P.W. 4) a lawyer was appointed Commissioner to effect the delivery of possession of the property to the complainant. On the 2nd of May, 1961, the Commissioner went to the spot but the judgment debtor was found absent. Smt. Sharbati, wife of the judgment debtor was, however, asked by the Commissioner to remove her household effects from the land which she did and its possession is alleged to have been delivered to the Appellant in accordance with the Civil Court decree. Smt. Sharbati, wife of the judgment debtor was, however, asked by the Commissioner to remove her household effects from the land which she did and its possession is alleged to have been delivered to the Appellant in accordance with the Civil Court decree. Some time afterwards the Appellant went out of station and during his absence the Respondents were alleged to have reentered on the land on the 20th of May, 1961, and when the Appellant returned and went to the premises on the 19th of June, 1961, he found them there and on his protest they were prepared to use force against him. Hence be filed the complaint. 6. Learned Counsel for the Appellant has strenuously contended that (sic)s the possession of the premises had been delivered to the Appellant in execution of the decree of the civil court the Respondents had no right to re-enter the land and the learned Sessions Judge was wrong in holding that they had not committed any offence u/s 448, I.P.C. It has been further urged that in any case the learned Sessions Judge had no jurisdiction to set aside the order passed by the Magistrate u/s 522(1) of the Code of Criminal Procedure. Reliance was placed by the learned Counsel on a single Judge's decision of this Court reported in 1958 Allahabad at page 159. We, however, find no force in these contentions. 7. A perusal of the civil court decree (paper No. 25 A) makes it obvious that it was only for the realisation of arrears of rent and for ejectment of Dharma from certain piece of land. In fact the relief claimed in the civil suit itself relates to a piece of land and not to any structure over it. Appellant Sirajuddin has admitted that he had given the land to the Respondents on rent and that they had raised structures on the same. He has also admitted that when he obtained the decree certain tiled structures constructed by the Respondents were standing on the land. In these circumstances the learned Sessions Judge was fully justified in holding that the delivery of possession in persuance of the civil court decree can only be in respect of the open piece of land and not about the structures which were put on the same by the Respondents. In these circumstances the learned Sessions Judge was fully justified in holding that the delivery of possession in persuance of the civil court decree can only be in respect of the open piece of land and not about the structures which were put on the same by the Respondents. In view of the fact that the Appellant had not obtained any decree against the Respondents for their dispossession from the structures or for the demolition of the structures from the land the learned Commissioner who was appointed to execute the decree had no authority in law to direct the judgment debtor or his wife to remove the structures from the premises in question and even if it is held that Smt. Sharbati had, under the directions of the Commissioner, removed her household effects from the premises in question that will not amount to dispossession of Dharma and other Respondents in law from the premises and cannot result in handing, over the possession to the Appellant. It is thus obvious that in view of the terms of the decree the Appellant could not have been delivered actual physical possession over the structures or the land underneath which must be deemed to have remained in possession of the Respondents. Dharma has denied to have ever removed his possession from the land. His contention finds support from the admissions made by Ishaq Husain and Handu (P.Ws. 5 and 7) who have stated that Dharma re-entered on the land on the same date when he was to dispossessed by the Commissioner in execution of the decree. This shows that in all likelihood the actual physical possession of Dharma over the structures or the land underneath never came to an end and the contrary assertion by the Appellant does not inspire confidence. 8. The other Respondents Yad Ram and Ram Sarup were not parties to the civil court decree. They have asserted to have remained in possession of the premises as tenants of Dharma and denied to have ever been ousted from it. 9. 8. The other Respondents Yad Ram and Ram Sarup were not parties to the civil court decree. They have asserted to have remained in possession of the premises as tenants of Dharma and denied to have ever been ousted from it. 9. In view of the aforesaid evidence on record we do not find any reason to differ with the finding of the learned Sessions Judge that the Appellant got only a formal possession of the site of hutments which continued to remain in actual possession of the Respondents and their conviction u/s 448, I.P.C. as recorded by the Bench Magistrate was wholly misconceived. We therefore uphold the order of acquittal and dismiss the appeal. 10. As regards the revision, once it is held that the conviction of the Respondents u/s 488, IPC was unsustainable on facts and in law we see no reason to interfere with the order of the learned Sessions Judge setting aside the order of the Magistrate passed u/s 522, Code of Criminal Procedure inasmuch as the very basis of that order after the definite finding of the learned Sessions Judge that the Respondents were never ousted from the possession of the premises in question disappears. 11. The decision of a learned single Judge of this Court reported in 1958 Allahabad page 159 Supra relied upon by the learned Counsel for the Appellant is distinguishable on facts. 11. The decision of a learned single Judge of this Court reported in 1958 Allahabad page 159 Supra relied upon by the learned Counsel for the Appellant is distinguishable on facts. In that case his Lordship was dealing with a revision application directed against an order of the learned Assistant Sessions Judge who had rejected an application by the acquitted persons for restitution of possession over the land in dispute on the ground that though the appellate court could pass an order of restitution of possession to the accused against whom an order u/s 522 of the Code of Criminal Procedure had been passed by the trial court, yet such an order u/s 423(1)(d), Code of Criminal Procedure can be passed only when the appellate court was seized of the appeal and not subsequent to its disposal and it was observed by Raghubar Dayal, J. that no "exception can be taken to the views expressed by the learned Assistant Sessions Judge on both the points." While dealing with the various points raised in the revision his Lordship was pleased tore-mark further that "the mere fact of acquittal does not necessarily mean that the acquitted person is entitled to the possession of the property over which possession had been delivered to the complainant under an order of the convicting Court...unless this Court be in a position to say definitely that the accused is entitled to the property and not the complainant, the question of exercising inherent powers of this Court in the interest of justice does not arise and it cannot be said that justice requires that the acquitted person should be re delivered possession of the property." It is thus obvious that the entire burden of that judgment is that unless the appellate or revisional court is satisfied that the acquitted person is entitled to get a redelivery of the possession of the property in dispute no such order can be passed because acquittals mostly are on the basis of the courts entertaining doubts about the correctness of the prosecution version. That however, is not the case here. That however, is not the case here. In the instant case even if the prosecution allegations are accepted in its entirety and it is held that Smt. Sharbati had removed her household effects from the premises on the directions of the Commissioner, that will not affect the possession of the Respondents in asmuchas they had been admittedly in possession of the property since before the date of the decree and the decree had never directed that their possession be disturbed or handed over to the Appellant. 12. There is another aspect of the question. According to the Appellant the Respondents had effected their reentry on the land when he was out of station. In order to exercise a power u/s 522(1) of the Code it must be found that the person convicted of the offence has dispossessed the other person by force or show of force or criminal intimidation. Where the possession of the property was taken in the absence of the complainant and his family members the question of any criminal force or show of force having been exercised by the accused against him for obtaining possession of the property does not arise and the very basis for the exercise of the power u/s 522(1) Code of Criminal becomes non existent. In this view of the matter we do not think it would be expedient in the interest of justice to exercise our discretionary power in revisianal jurisdiction for setting aside the order of the learned Sessions Judge by which he has quashed the order passed by the Magistrate u/s 522(1) Code of Criminal Procedure. 13. We are fortified in our view by a Division Bench decision of the Calcutta High Court Nani Gopal Deb and Another Vs. Bhima Charan Rakshit, AIR 1956 Cal 32 where it was held that when entry into the rooms by the accused was made in the absence of the landlord or his men, it cannot be said that that dispossession was as tended by any criminal force or show of force or by criminal intimidation and therefore the Magistrate's u/s 522(1) of the Code of Criminal Procedure was without jurisdiction. 14. In the result both the appeal and the revision fail and are dismissed.