S. S. Tewari v. Om Prakash Srivastava — 1979 DIGILAW 4 (ALL)

JUDGMENT Mahavir Singh 1. This petition has been moved under Section 482 CrPC for quashing the criminal proceedings pending against the applicant and another under Section 448 IPC. 2. The relevant facts are that the house No. 555CH/47 situate in mohalla Ram Nagar, Lucknow belonged initially to Smt. Gulab Kali. According to opposite party no. 1 the complainant's wife Smt. Maya Devi and one Smt. Ranno Devi wife of Sri S. K. Srivastava had entered into an agreement of sale with the said Smt. Gulab Kali, on 12- 11-74 and had paid an advance of Rs. 3200/- to her and she was to execute sale deed within one month on receiving the permission from the District Magistrate. It was, however, alleged by him that later she began to negotiate the sale in favour of one Om Prakash Singh one of the co-accused in this criminal case. So they filed a regular Suit No. 21 of 1975 on 27-1-75 at about 11.00 A. M. for specific performance of contract against Smt. Gulab Kali. But on the same day Om Prakash Singh one of the co-accused in the complaint case along with the applicant got a sale deed executed from Smt. Gulab Kali about the house in question. It was alleged that this sale deed was not bonafide as Sri Om Prakash had full knowledge of the prior agreement of Smt. Gulab Kali, Smt. Ranno Devi and Smt. Maya Devi and also because the transfer was made lis pendens during the pendency of the regular suit. The case of the applicant was that Om Prakash Singh had no knowledge of any such prior agreement and that the transfer in favour of Om Prakash Singh was not lis pendens but was prior to the institution of the regular suit. 3. The regular suit filed by Smt. Maya Devi and Smt. Ranno Devi was decreed ex-parte on 16 -8-75. Then the court on behalf of the owner executed the sale deed in their favour on 28-9-77. 4. SMT. Maya Devi and SMT. Ranno Devi, decree-holder then also applied for possession in execution proceedings vide case no. 1 of 1978. The execution court allowed their application and ordered Amin to deliver possession to them. According to the case of the complainant opposite party no. 4. SMT. Maya Devi and SMT. Ranno Devi, decree-holder then also applied for possession in execution proceedings vide case no. 1 of 1978. The execution court allowed their application and ordered Amin to deliver possession to them. According to the case of the complainant opposite party no. 1, the Amin delivered actual possession to him on behalf of the decree-holders on 22-2-78 at about 11.00 A.M. with the help of the police. The articles found inside the house were taken out and given to one Savetri Singh who was there and possession was delivered. It was further alleged by the complainant that at about 4.30 P. M. the same day, the applicant along with the owner Om Prakash and about 10-15 others armed with lathis, knives and pistols retook possession of the house in question forcibly after threatening the complainant and his brother and others who were there. 5. The case of the applicant was that no possession had been delivered is execution and it was a fictitious affair simply created by the complainant to cook up a case against him and others. It was merely alleged that some ladies did approach them for taking possession of the premises but they told that the decree was not against them and so they went away. 6. The opposite party no. 1 then filed a complaint against the applicant and two others under Section 448. The applicant says that he was tenant of the part of the premises in question and was never dispossessed at any time, and the complaint was filed by the complainant simply to put pressure upon the owner and him to vacate the same. The contention of the complainant opposite party no. 1 is that it was a disputed fact whether possession had actually been delivered in execution proceedings to the decree-holders and whether the applicant and his companions had re-taken possession by force as alleged and it is not within the scope of the provisions of Sec. 482 CrPC to investigate as to which of the contentions of the parties is correct. It is further contended that such proceedings can lie only on the facts given out in the complaint or as are admitted. Reference in this connection may be made to Om Prakash v. State, 1979 CrLJ (NOC) 39 which followed 1977 And. Cr. Cases pp. 22-26. It is further contended that such proceedings can lie only on the facts given out in the complaint or as are admitted. Reference in this connection may be made to Om Prakash v. State, 1979 CrLJ (NOC) 39 which followed 1977 And. Cr. Cases pp. 22-26. On the other hand the learned counsel of applicant contended that even on the facts alleged by the complainant the offence under Section 448 is not made out. Secondly it is contended that even otherwise in view of the certain developments in this case it would not be necessary for this court to enter into this question as to which of the two versions of the parties was correct. 7. As regards the first contention he contended that from the allegations made by the complainant it was merely a case of civil trespass and not of criminal trespass so the complaint was not maintainable. Reference was made by him to Nand Lal Chaudhari v. King Emperor, 1929 ALJ 92 and Jawanmal v. Mr. Bhanwari, AIR 1958 Raj. 214 . In Nand Lal v. King Emperor (supra) it was held that if ejectment of a tenant was made in violation of the Agra Tenancy Act and he re-enters the same, he was not liable for conviction under Section 441. In this case it cannot be said that there was any period fixed for execution. Learned counsel for the applicant had, however, contended that the execution was illegal. I will deal this point later while dealing with the second contention. The case of Jawanmal v. Mt. Bhanwari (supra), however, clearly goes against the case of the applicant. Learned counsel for the applicant had relied upon it to show that the offence under Section 448 IPC could be made out only when the intention of the applicant was to commit offence to insult, intimidate or annoy the person in possession. The applicant at the most could be said to have taken possession because he thought himself to be so entitled being no party to the civil suit in which the decree was passed in favour of the decree-holder. But in this very ruling (para 15) it was mentioned that if the possession is being taken in course of prosecution of the common object of unlawful assembly it by itself amounts to offence and, therefore, Section 441 can be attracted. 8. But in this very ruling (para 15) it was mentioned that if the possession is being taken in course of prosecution of the common object of unlawful assembly it by itself amounts to offence and, therefore, Section 441 can be attracted. 8. IN the present case according to the allegations made therein about 10-15 persons had come along with the applicant and with other co-accused to take possession forcibly on the land in question armed with various arms and had actually threatened the complainant and his brothers before making an entry. So this contention of the learned counsel for the applicant has no force. Coming to the second contention, which is really the main contention and on which the learned counsel for the applicant laid great stress, two developments are being referred to by the learned counsel for the applicant as to why it is not necessary for this court in these proceedings to investigate as to which of the two versions about possession of the house in question is correct. Firstly it is alleged that there had been a finding of the civil court on this point that the applicant and his landlord Om Prakash Singh (he is different from the complainant Om Prakash Srivastava) were not dispossessed from the premises in question in execution of the decree in favour of the wife of the complainant and another and this finding would be binding on the criminal court and so there was no question of any possession having been made against the applicant. Reliance was placed for this upon M/s. Karam Chand v. Union of India, AIR 1971 SC 1244 . 9. In this connection the facts are that after the alleged delivery of possession in execution proceedings, the applicant and his landlord moved an application under Or. 21, Rule 99 CPC to the execution court alleging that they being no party to the decree, were not liable to be evicted in execution of that decree and, therefore, the execution, even if true, may be quashed. Both parties had filed affidavits and papers in support of their respective contentions. Learned execution court vide Annexure- (i) had held that the application was not maintainable because he was admittedly in possession (according to the complainant opposite party no. Both parties had filed affidavits and papers in support of their respective contentions. Learned execution court vide Annexure- (i) had held that the application was not maintainable because he was admittedly in possession (according to the complainant opposite party no. 1 the applicant landlord had taken possession after few hours of the dispossession and so when he moved this application he was is possession. According to the applicant-landlord he was never dispossessed but whatever may be the position he was admittedly in possession at the time when he moved the application), when he moved this application u/Or. 2[l R. 99 CPC. A review application was again made by the applicant-landlord bint that too was dismissed by the learned Judge vide Annexure-A to the rejoinder -affidavit. The contention of the applicant is that though the applications had been dismissed, but the learned Judge had given findings on all the deputed points in his favour. Thus he held that the applicant-landlord was in possession all through was not dispossessed in the execution proceedings. He also held that the transfer in his favour was not lis pendens and so the decree was not binding upon him. It is on this findings that he places reliance. 10. Learned counsel for the complainant-opposite party no. 1 contends that findings would not have any force of res judicata because the application had been dismissed as not maintainable and so any observation made by the court while dismissing the application would be mere obiter. This contention is correct. An order under Order 21 Rule 100 CPC which is passed on application presented under Order 21 Rule 99 is now to be treated as decree in view of: Order 21 Rule 103 CPC and could be challenged in appeal. So if the application had been dismissed the complainant-opposite party no. 1 could not go in appeal against the decree and hence the observations made in the body of the order dismissing the application u/Or. 21 Rule 99 CPC would not be binding upon him. So also the observations in these proceedings would not be binding upon the criminal court either. 1 could not go in appeal against the decree and hence the observations made in the body of the order dismissing the application u/Or. 21 Rule 99 CPC would not be binding upon him. So also the observations in these proceedings would not be binding upon the criminal court either. The second contention is that the order of delivery of possession made by the execution court was void being without jurisdiction and so any possession taken in pursuance of such order would be illegal and thus position of the complainant-opposite party would be that of a trespasser and if he was ejected so Section 441 IPC would not apply. In this connection it is pointed out that no decree for possession was passed in favour of the complainant opposite party no. 1's wife and another. Only a decree for specific performance was passed. It was also pointed out that relief for possession was made in the suit but still no such decree was passed, it would, therefore, imply that the relief for possession had been rejected. So there was no question of giving an order for delivery of possession in execution of such a decree. 11. The learned counsel for the complainant-opposite party contends that a decree for specific performance would imply a decree for possession as well even if it is not claimed and that the execution court can order delivery of possession in execution of the decree for specific performance. Reliance for this was placed upon Arjun v. Sahu Maharaj Narain, 1950 AWR 162. He further contends that this fact that relief for possession was claimed but no order about it was passed would also not make any difference and for this he relies upon Pt. Balmukund v. Veer Chand, 1954 AWR 424. He also refers to S. S. Rajabether v. N. A. Sayeed, AIR 1974 Mad 289 , where the rulings of all the High Courts in this connection were reviewed. 12. Learned counsel for the applicant contends that these rulings have no longer any validity because there has been amendment in the Specific Relief Act. It is pointed out that by 1963 a specific provision has been made making it obligatory upon a person in a suit for specific performance to claim a relief for possession as well of that if he does not do so, then it shall not be granted. It is pointed out that by 1963 a specific provision has been made making it obligatory upon a person in a suit for specific performance to claim a relief for possession as well of that if he does not do so, then it shall not be granted. This Section 22 of the new Specific Relief Act is as follows :- "(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for - (a) Possession or partition and separate possession of the property in addition to such performance, or (b) any other relief to which he may be entitled including the refund of any earnest money or deposit paid or made to him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed ; Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall at any stage of the proceeding allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the Court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under Section 21." The learned counsel for the complainant-opposite party no. 1 contends that even after this new provision, the old law as enunciated by this court in Balmukund v. Veer Chand (supra) continues to hold the field. He contends that according to this section, the relief of possession will be necessary in an appropriate case and not in each case. Reliance for this was placed upon Smt. Gyasa v. Smt. Risalo, 1976 AWC 758 . 13. Learned counsel for the applicant contends that this ruling does not lay down the correct law and he refers to three other cases, namely, Mahendra Nath v. M/S. Moti Ram Rattan Chand, AIR 1975 Delhi 155, and M/S. Ex-Servicemen Enterprises (?) Ltd. v. Sumey Singh, AIR 1976 Delhi 56 and Bisambhar v. Mamchand, 1977 (3)ALR 25 (summary of cases). 13. Learned counsel for the applicant contends that this ruling does not lay down the correct law and he refers to three other cases, namely, Mahendra Nath v. M/S. Moti Ram Rattan Chand, AIR 1975 Delhi 155, and M/S. Ex-Servicemen Enterprises (?) Ltd. v. Sumey Singh, AIR 1976 Delhi 56 and Bisambhar v. Mamchand, 1977 (3)ALR 25 (summary of cases). So far as M/S. Ex-Servicemen Enterprises (P.) Ltd. v. Sumey Singh, (supra) is concerned that is about the power of the court to amend the plaint, even after the decree has been passed but that is not the point in question here. In Mahendra Nath v. M/S. Moti Ram (supra), no doubt, it was observed that while under the old Specific Relief Act it was not necessary for the plaintiff to pray for relief of possession in suit for specific performance of a contract, it was so necessary under Section 22 of the new Specific Relief Act. But actually in that case it was held that the new Specific Relief Act was not applicable and the case was governed by the old Act and so such a prayer was not necessary. So this observation might be only obiter. Further the significance of the phrase "appropriate case" was not discussed in that case at all. 14. In Bishambhar v. Mamchand, (supra), it was no doubt observed that no order for delivery of possession under section 28 (3) of the Specific Relief Act could be passed if no such relief was granted in suit under section 22 of Specific Relief Act. Though these observations give some support to the point of view of the applicant but these can only be said to be general observation. There is no discussion in the summary report as to the significance of the word 'appropriate' used in Sec. 22. If relief of possession was to be claimed in each case, what was the use providing for it only in appropriate case. However, even otherwise I do not agree with the learned counsel for the applicant that the view taken in Smt. Gyasa v. Smt. Risalo (supra) requires some review. Learned counsel for the applicant relies upon sub-section (2) of this section to show that it was necessary for the applicant to claim relief for possession otherwise it could not be granted by the court at all. But this only refers to the power of the court. Learned counsel for the applicant relies upon sub-section (2) of this section to show that it was necessary for the applicant to claim relief for possession otherwise it could not be granted by the court at all. But this only refers to the power of the court. Sometime a plaintiff does not specifically claim relief for possession and he merely prays for any other relief to which he is entitled and on that basis he presses the court to grant him relief for possession also. It was to obviate this contention that it was made obligatory that court would not grant relief for possession unless it was specifically claimed. It does not make obligatory on the plaintiff to claim relief for possession in every case. 15. This view also finds support from the provision of Section 28 (3) of the Specific Relief Act. This section also empowers the execution court to grant delivery of possession if he is otherwise entitled. If by entitlement is meant a decree under section 22 of this Act, then there was no need for such a provision. For, if there would have been a decree for possession, the execution court is bound to execute it. It therefore implies that except where it is appropriate to ask for a relief to possession, it need not be claimed. 16. The learned counsel for the applicant contends that even from the view taken in Gyasa v. Risalo (supra) it was case in which it was appropriate for opposite party no. 1 to claim a relief of possession. While dealing as to what could be such an appropriate case so as to come within the scope of this section, it was observed that where possession has changed hands after contract between the opposite party no. 1 and the former owner, it would be appropriate to claim such a relief. It is contended by the learned counsel for the applicant that in this case it was not disputed that Smt. Gulab Kali lateron transferred possession to the applicant's landlord after execution of a sale deed in his favour. All that is alleged is that it took place lis pendens, that is after the suit for specific performance of the contract had been filed. The applicant disputes that fact and contends that sale had taken place, though same day on which suit was filed, but prior to it. All that is alleged is that it took place lis pendens, that is after the suit for specific performance of the contract had been filed. The applicant disputes that fact and contends that sale had taken place, though same day on which suit was filed, but prior to it. This is, however, a disputed point. So the question has to be seen from what the opposite party no. 1 has admitted. Now so far as scheme of Section 22 of Specific Relief Act is concerned, this fact makes no difference as to when possession was transferred and as soon as it took place; it became an appropriate case for him to claim such a relief. That is why provision has been made by proviso to sub-section (2) of Section 22 that when plaintiff had not claimed any such relief, the court is to allow him to amend plaint to claim such a relief at any stage of the proceeding. The Delhi High Court in M/s. Ex-servicemen Enterprises (supra) has gone to the extent of holding that such an amendment could be made even at the stage of execution, I do not agree to that extent. But that question does not fall for decision in this case. Here this contingency took place the very day the suit for specific performance was filed. They also must have had knowledge of the same. In the plaint itself it was alleged that necessity for suit arose because Smt. Gulab Kali went back on her agreement and began to negotiate sale with applicant landlord. In the counter-affidavit it was also alleged that they had even informed Sub-Registrar not to register sale deed in his favour but he avoided Sub-Registrar and got the deed registered by District Registrar so it was a very appropriate case for opposite party's wife and her co-vendee to claim a relief of possession by amending plaint if necessary. 17. The learned counsel of opposite party no. 1 contends that as it was transfer lis pendens, the provisions of Section 22 of Specific Relief Act would be subject to Section 52 of Transfer of Property Act. 17. The learned counsel of opposite party no. 1 contends that as it was transfer lis pendens, the provisions of Section 22 of Specific Relief Act would be subject to Section 52 of Transfer of Property Act. In this connection reliance is placed upon Ram Pearey v. Gauri, 1978 AWC 54 where it was held that provision of Section 19 of the Specific Relief Act which protects a subsequent transfer bonafide for value without notice are subject to provisions of Section 52 of Transfer of Property Act. Section 22 of Specific Relief Act however deals with a different situation. It does not deal with rights of subsequent transferee. It only deals with the procedure as to how to enforce the contract for specific performance in a more effective way so as to avoid multiplicity of suits. 18. The learned counsel of applicant has also contended that in this case, this controversy as to whether it was appropriate for the plaintiff to claim possession was irrelevant because they had actually claimed such a relief for possession. This is true that such a relief was claimed but that by itself is not enough. It will have importance only if the relief for possession was appropriate within the meaning of Section 22 of the Specific Relief Act. For if it was not so, the old law will hold good and it has already been pointed out that this court in Balmukund v. Veerchand (supra) had made it clear that this fact made no difference whether such a relief was claimed or not. However, as discussed above in circumstances of this case, it was an appropriate case in which relief for possession should have been claimed. Hence from this point of view, this fact assumes importance that a relief for possession was claimed by plaintiff but there was no mention about it in the judgment and as such it would be deemed to have been rejected. So the is execution court could not grant delivery of possession. 19. Section 28 of the Specific Relief Act also would have no application. The delivery of possession by execution court could be granted only if he was entitled to it. If such a prayer had been refused in the regular suit, it could not the granted by execution court. 20. 19. Section 28 of the Specific Relief Act also would have no application. The delivery of possession by execution court could be granted only if he was entitled to it. If such a prayer had been refused in the regular suit, it could not the granted by execution court. 20. SO the order for delivery of possession given by execution court was without jurisdiction and as such void and of no legal value. All proceedings in that connection thus became void, and even if possession be deemed to have been taken by the opposite party no. 1 on behalf of decree-holders, it was of no legal value and his position would be of a mere trespasser. It is then contended that even as against a trespasser, none including the true owner has any right to retake possession by force and so if he did so, the offence under Section 441 IPC is made out. 21. The relevant part of Section 441 IPC is worded as follows : - "Whoever enters into or upon property in possession of another......." 22. Here the words "in possession of another" would include possession of trespasser only when it is a settled possession and where even the true owner has acquiesced into it by his conduct or otherwise. In this connection the dictum of Supreme Court in Munshi Ram v. Delhi Administration, AIR 1968 SC 702 has a great relevance. Their Lordships in para 14 page 705 and 706 observed as follows :- "It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may reenter and re-instate himself provided he does not use more force than necessary. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may reenter and re-instate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to revive the obstruction even by using necessary force." In the present case, the possession of opposite party no. 1 had not been settled. The re-entry took place according to them within a few hours of alleged dispossession. The applicant and his landlord could not be said to have acquiesced into this trespass of opposite party no. 1. The opposite party no. 1 has not alleged that they were present when eviction took place. One Savitri Singh was alleged to be the person who took the articles alleged to be removed from the house at the time of delivery of possession, but who was this Savitri Singh ? It has not been alleged that he was agent or in any way connected with applicant and his landlord. Hence this dispossession, even if tit was so, was an act of stray trespass and so as soon as the owner and other lawful occupant came to know of it, they could take steps in the words of the above dictum to remove obstruction even by using necessary force. Here no force was alleged to have been used. Only a show of it was made. 23. Hence under such circumstances no offence under Section 448 IPC could have been made out. The criminal proceedings thus arising out of a complaint in such a case would be a mere abuse of process of law and are liable to be quashed. 24. The petition is accordingly allowed and the criminal proceedings arising out of complaint made by opposite party no. 1 against the applicant and other as mentioned therein are quashed. Petition allowed.