Munshi Ram & Ors Vs. Delhi
Administration [1967] INSC 278 (27 November 1967)
27/11/1967 HEGDE, K.S.
HEGDE, K.S.
SIKRI, S.M.
SHELAT, J.M.
CITATION: 1968 AIR 702 1968 SCR (2) 408
CITATOR INFO :
RF 1970 SC1079 (17) F 1974 SC1570 (19) F 1975
SC1478 (18) E 1975 SC1674 (5,10,11,13,15,16) RF 1977 SC2226 (5) R 1979 SC 391
(9) R 1988 SC 863 (15,16,17,19)
ACT:
Indian Penal Code, 1860, ss. 97, 447, 324,
149 and 148- Complainant purchasing in public auction land acquired by Central
Government under the Displaced Persons Act, 1954- after issue of sale
certificate Government purporting to give him delivery through a warrant issued
by a Managing Officer-effect of-Another person proved to be tenant and in
possession --complainant's party on attempting to take possession repelled by
force--whether right of private defence existed or acceded.
Displaced Persons Act, 1954 s. 19(3)-Scope
of.
HEADNOTE:
Certain land which was evacuee property
acquired by the Central Government under the Displaced Persons Act, 1954 and
under the management of the Managing Officer, was purchased by A at a public
auction on January 2, 1961. Pro-visional delivery of the property was given to
the vendee on October 10, 1961. A sale certificate was issued to him on
February 8, 1962, and the actual delivery was given on June 22, 1962, on a
warrant issued by the Managing Officer.
On July 1, 1962, when A, accompanied by a
party, went to the land with a tractor to level the land, the appellants
attacked the complainant's party and caused injuries to some of them. Upon
their subsequent prosecution, the plea taken on their behalf was one of private
defence. Their case was that their relation J was the tenant in the land for
over 30 years and his tenancy was never terminated; there was no delivery on
June 22, 1962, and the alleged delivery was without the authority of law and of
no effect; J therefore continued to be in possession of the property on July 1,
1962. The appellants had therefore used minimum force to prevent the complainant's
party from taking forcible possession of the land. The Courts below accepted
the prosecution version and convicted the appellants under ss.
447 and 324 read with 149 and 148 IPC.
On appeal to this Court,
HELD : Allowing the appeal : On the basis of
the proved facts it could not be said that the appellants had exceeded their
right of private defence. [465 A] It was not disputed that J was in possession
of the field on June 22, 1962 and the record established that he continued to
be the tenant of the land even after the sale in favour of A. After the issue
of the sale certificate to A, the Government had no interest in the land and
the managing officer was not therefore competent to evict J. He bad no interest
in the land on June 22, 1962 and could not have issued any warrant for the
delivery of the field on that date. The alleged delivery therefore had no legal
force; in the eye of the law it was non-est. [461 B] There was no force in the
contention that the delivery in question was effected under s. 19(3) of the
Displaced Persons Act, 1954. The provisions of that Section apply only to
properties which are under the control of the managing officers or managing
corporations and not to properties which have ceased to be evacuee properties.
Furthermore, it was not 456 shown that any
action under sub-sections (1) and (2) of s. 19, which was a condition precedent
for taking action under sub-section (3), had been taken against J. [460 H]
Normally before a tenant can be evicted from his holding his tenancy must be
terminated and the eviction should be done through a Court of competent
jurisdiction. A who had become the owner of the land long before June 22, 1962
could not have evicted J from the land in the manner alleged. (459 E] Lallu
Yeshwant Singh v. Rao Jagdish Singh and others, [1968] 2 S.C.R. 203.
It could not be said that as A had, rightly
or wrongly, taken on of the property on June 22, 1962, J should have agitated
the matter in a court of law and the appellants had no right to take the law in
their own hands. The fact that some formalities were gone through in pursuance
of an unauthorised delivery order was no ground for holding that possession of
the field had passed to A.
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 a 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 re-enter and reinstate
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
which has not matured into settled possession, constitute an unlawful assembly,
giving right to the true owner, though not in actual possession at the time, to
remove the obstruction even by using necessary force..
[462 B-E] From the proved facts, it was
evident that A and his party, of whom one was armed, had gone to the field with
a view to intimidate J and to assert their possession. They were therefore
guilty of criminal trespass and also constituted an unlawful assembly. The
appellants were therefore entitled to prevent hem, by using necessary force,
from taking possession. [462 HI In re Jogali Bhaigo Naiks and Anr. AIR 1927
Mad. 97, Jai Dev v. State of Punjab, [1963] 3 S.C.R. 489; Horam and others v.
Rex, 50 Cr. LJ. 868; Sangappa and Ors. v. State, ILR [1955] Hyderabad 406; in
re Mooka Nadar, AIR, 1943 Mad.
590, relied upon.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.
124 of 1965.
Appeal by special leave from the judgment and
order dated April 26, 1965 of the Punjab High Court, Circuit Bench at Delhi in
Criminal Revision No. 266-D of 1964.
Bhawani Lal, Kartar Singh Suri and E. C.
Agrawala for P. C. Agrawala, for the appellants.
R. N. Sachthey, for the respondent.
457 The Judgment of the Court was delivered
by Hegde, J. Two questions that arise for decision in this appeal by special
leave are : (1) whether the appellants have established satisfactorily the
right of private defence pleaded by them and (2) if they had that right, have
they exceeded the same ? The prosecution case is as follows : Field No.
1129/477 measuring five bighas and thirteen biswas situated in Kilokri was an
evacuee property and as such was under the management of the managing officer.
That property was acquired by the Central Government under the Displaced
Persons Act, 1954. (For the sake of convenience we shall refer to that property
hereinafter as evacuee property.) The same was sold by public auction on
January 2, 1961 and purchased by PW 17 Ashwani Kumar Dutt for a sum of Rs.
7,600. Provisional delivery of that property
was given to the vendee on October 10, 1961. The sale certificate was issued on
February 8, 1962. The actual delivery was given on June 22, 1962 as per the
warrant issued by PW 5. Khushi Ram, the managing officer. The said delivery was
effected by PW It) Sham Das Kanungo. On July 1, 1962 when PW 17 and his father
PW 19, R. P. Dutt went to the field with PW 16, Gopal Das, PW 15 Nand Lal and
one B. N. Acharya with a trac- tor to level the land, the appellants came armed
with spears and lathis attacked the complainants' party and caused injuries to
PWs 17 and 19 and the tractor driver, B. N. Acharya.
Though the appellants in their statement
under s. 342 Cr.P.C. denied having been present at the scene of occurrence or
having caused injuries to any one, the plea taken on their behalf at all stages
was one of private defence. Their case is that their relation Jamuna (DW 3) was
the tenant in the land for over thirty years. His tenancy was never terminated.
He had raised crops in the field in question. There was no delivery on June 22,
1962.
If there was any delivery as alleged by the
prosecution, the same was without the authority of law and as such was of no
effect. Hence, Jamuna continued to be in possession of the property even on
July 1, 1962. On the day prior to the occurrence, PWs 17 and 19 tried to
intimidate Jamuna to come to terms with them and to peacefully deliver
possession of the property to them. But he put off the question of compromise
by pleading that he was going out of station and the question of compromise
could be considered after his return. With a view to forcibly assert their
right to the property, the complainant-party came to the field in a body on
July 1, 1962 with a tractor. At that time PW 19 was armed with an unlicensed
pistol. It is at this stage that the appellants who are near relations of
Jamuna went to the field and asked the complainant party to clear out of the
field. When they refused to do 458 so, they pushed them and thereafter used
minimum force to throw them out of the field. On the basis of the above facts,
it was urged on behalf of the appellants that they were not guilty of any
offence.
The courts below have accepted the
prosecution version both as regards possession as well as to the manner in
which the incident took place. The appellants have been convicted under ss.
447, 324 read with 149 and 148 I.P.C. We have now to see whether on the basis
of the undisputed facts as well as the facts found by the High Court, the
defence can be said to have made out the plea of defence of property advanced
on their behalf.
It is true that appellants in their statement
under s. 342 Cr.P.C. had not taken the plea of private defence, but necessary
basis for that plea had been laid in the cross- examination of the prosecution
witnesses as well as by adducing defence evidence. It is well-settled that even
if an accused does not plead selfdefence, it is open to the court to consider
such a plea if the same arises from the material on record-see In re Jogali
Bhaigo Naiks and another(1). The burden of establishing that plea is on the
accused and that burden can be discharged by showing prepon- derance of
probabilities in favour of that plea on the basis of the material on record.
The first question that arises for decision
in this case is as to who was in possession of the field in dispute on the date
of the occurrence, i.e., on July 1, 1962. For deciding that question it is
necessary to find out as to who was in possession of the same prior to June 22,
1962, the date on which that field was said to have been delivered to PW 17.
On this question, the prosecution is silent. DW
3, Jamuna, in his evidence deposed that he had been in possession of that field
as a tenant for over thirty years. His case was that he was formerly the tenant
in respect of that field under some Muslim landlords and after their migration
to Pakistan, under the officer managing the evacuee property.
This evidence of his was not challenged in
cross- examination. That evidence is supported by the prosecution exh. PT. The
courts below have also proceeded on the basis that Jamuna was in possession of
the field till June 22, 1962. Therefore, we have to see whether there was any
lawful delivery of that field on June 22, 1962. At this stage it is necessary
to recapitulate that the field in question had been sold by the managing
officer on January 2, 1961. Its provisional delivery was given on October 12,
1961. The sale certificate was issued on 8-2-62 (exh. PF).
Therefore, the government had no interest in
that field on or after the aforementioned sale. It is not the case of the
prosecution that Jamuna's tenancy had been terminated by any of the authorities
constituted under (1) AIR 1927 Mad. 97.
459 the Displaced Persons (Compensation and
Rehabilitation) Act 1954 (to be hereinafter referred to as the Act). It may
further be noted that the exh. PM-The terms and conditions under which the
auction of the field was held--does not show that the government had undertaken
to deliver physical possession of that field to the purchaser. From the facts
stated above it is obvious that Jamuna continued to be the tenant in the land
even after the sale in favour of PW 17.
The prosecution case is that delivery of that
field was given to PW 17 by PW 10 the kanungo on June 22, 1962 as per the
delivery warrant issued by PW 5, the managing officer.
Even according to the prosecution version, at
the time of that delivery Jamuna was not present. There is also no evidence to
show that Jamuna was aware of the alleged delivery. It is true that as a token
of the delivery, some ploughing was done at the time of the alleged delivery.
At this stage it is also necessary to mention that at the time of the alleged
delivery, crops grown by Jamuna were there in a portion of the field. It was
said that the kanungo who delivered the field, valued the crops in question at
Rs. 60 and the same was deposited by PW 17 with PW 5 as per the orders of the
latter for being paid over to Jamuna. We were not told under what authority
those steps were taken.
This takes us to the question whether the
purported delivery is valid in law. Normally before a tenant can be evicted
from his holding, his tenancy must be terminated and the eviction should be
done through a court of competent jurisdiction. No landlord has any right to
throw out- his tenant from his holding. The law on the subject was explained by
this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh and others(1).
Therefore, it is clear that PW 17 who had become the owner of the land long
before June 22, 1962 could not have evicted Jamuna from the land in the manner
alleged.
The next question is whether PW 5, the
managing officer was competent to evict Jamuna. We fail to see how he could
have done it. He had no interest in the land in question on June 22, 1962. The
right, title and interest of the government in the land had long been
alienated. The managing officer had already given to the vendee such possession
as he could have, namely, the landlord's possession. Thereafter it went out of
the compensation pool and the managing officer had no power to deal with it
unless otherwise expressly provided.
Our attention has not been invited to any
provision in the Act authorising the managing officer to deal with a property
which had ceased to be an. evacuee property. Therefore we fail to see how PW 5
could have issued any warrant for the delivery of the field in question on June
22, 1962.
(1) [1968] 2 S.C.R. 203.
460 Before the courts below it was pleaded on
behalf of the prosecution-which plea commended itself to those courts-that the
.delivery in question was effected under S. 19 of the Act. Section 19 ,to the
extent it is material for our present purpose, reads thus I Notwithstanding
anything contained in any contract or any other law for the time being in force
but subject to any rules that may be made under this Act, the managing officer
or managing corporation may cancel any allotment or terminate any lease or
amend the terms of any lease or allotment under which any evacuee property
acquired under this Act is held or occupied by a person, whether such allotment
or lease was granted before or after the commencement of this Act.
(2) Where any person-(a) has ceased to be
entitled to the possession of any evacuee property by reason of any action
taken under sub-section (1), or (b) is otherwise in unauthorised possession of
any evacuee property or any other immovable property forming part of the
compensation pool; he shall, after he has been given a ,reasonable opportunity
of showing cause against his eviction from such property, surrender pos-
session of the property on demand being made in this behalf by the managing
officer or managing corporation or by any other person duly authorised by such
officer or corporation.
(3) If any person fails to surrender
possession of any property on demand made under sub-section (2) the managing
officer or managing corporation may, notwithstanding anything to the contrary
contained in. any other law for the time being in force, eject such person and
take possession of such property and may, for such purpose, use or cause to he
used such force as may be necessary." The above provisions apply only to
properties which are under .the control of the managing officers or managing
corporations. They do not apply to properties which have ceased to be evacuee
properties. Further, it is not the prosecution case that any action under sub-ss.
1 and 2 of S.
19 had ever been taken against Jamuna. If
that was so, no action under sub-s. 3 of S. 19 could have been taken. As a
condition precedent for taking action under sub-s. .of S. 19 it was necessary
to take the steps prescribed by sub-s.
461 of s. 19. It must be noted that the power
conferred under sub-s. 3 is a special power conferred for a special purpose.
Such a power has to be exercised strictly in
accordance with -the conditions prescribed. If it is not so exercised, the
exercise of the power would be vitiated. Having not taken any action under
sub-s. 2 of s. 19, the managing officer was incompetent to issue any warrant
for delivery under sub-s. 3 of s. 19 under which he is said to have acted. It
was for the vendee to take the necessary steps under law for taking possession
from Jamuna. Therefore, it is obvious that the alleged delivery has no legal
force. In the eye of the law it is non-est. Hence Jamuna continued to be in
possession of the field in question even after the so-called delivery on Juno
22, 1962. This aspect of the case was completely lost sight of by the courts
below.
It is seen from the evidence of DW 3, Jamuna,
which evidence was not even challenged in cross-examination, that PWs 17 and 19
were aware of the fact that the purported delivery on June 22, 1962 was merely
a paper delivery. In his chief- examination, DW 3, Jamuna, deposed thus:
" A day prior to the occurrence, R. P.
Dutta and his son Ashwani Kumar had met me and had asked me to get the
compromise effected. I told him that since I was proceeding out station in
connection with some marriage, any talk of compromise could take place after my
return from there. Both R. P. Dutta and his son Ashwani Kumar had threatened me
that in case I would not deliver possession of the land in question willingly,
they would get possession of the same by force under the pressure of the
police. AR the accused are near relations of mine." To repeat, this
evidence was not challenged in cross- examination. From that evidence it is
clear that at about the time of occurrence PWs 17 and 19 were conscious of the
fact that Jamuna still continued to be in possession of the field.
PWs 17 and 19 were aware of the fact that
Jamuna was un- willing to deliver possession of the field. This is borne out by
the fact that at the time of the alleged delivery on June 22, 1962, police
assistance was applied for and obtained.
From the foregoing it is clear that Jamuna
was in effective possession of the field on the date of the occurrence. But it
was urged on behalf of the prosecution that rightly or wrongly PW 17 had taken
possession of the property on June 22, 1962, and therefore, if Jamuna had any
grievances, he should have agitated LISup(CI)/68-15 462 the same in a court of
law, and that his relations had no right to take law into their own hands. This
contention is based on a misconception of the law. If by the alleged delivery
PW 17 could not be held to have been put in possession of the field, he could
not be said to have been in possession of the same. The fact that some
formalities were gone through in pursuance of an unauthorised order issued by
PW 5 is no ground for holding that possession of the field had passed into the
hands of PW 17 Steps taken by PW 17 and others who accompanied him on June 22,
1962 were unauthorised acts. 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 a 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 re-enter and reinstate 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 which has not matured into settled possession,
constitute an unlawful assembly, giving right to the true owner, though not in
actual possession at the time, to remove the obstruction even by using
necessary force.
It is not the case of the prosecution that
between June 22 and July 1, 1962 the complainant or his men -had been to the
field in question. We have earlier seen that PWs 17 and 19 had unsuccessfully
tried to intimidate Jamuna on June 30, 1962 to deliver peaceful possession of
the field. It is only thereafter on July 1, 1962, they along with their friends
went to the field with a tractor, and at that time PW 19 was armed with a
pistol for which he had no licence.
It was at that stage, the appellants who are
close relations of Jamuna came to the field, some armed with sticks and others
with spears. They first asked the complainant's party to clear out of the
field, but when they refused, they pushed them and thereafter attacked them as
a result of which PW 17, PW 19 and the tractor driver Acharya were injured (see
evidence of PW 19, R. P. Dutt). The injuries caused by them were held to be
simple injuries.
From the proved facts, it is evident that PWs
17 and 19 had gone to the field with their friends, PW 19 being armed with a
463 deadly -weapon, with a view to intimidate Jamuna and to assert their
-possession. Therefore they were clearly guilty of criminal trespass. They also
constituted an unlawful assembly.
The law relating to defence of property is,
set out in s. 97 IPC, which says that every person has a right, subject to the
restrictions contained in s. 99, to defend-First-his own body, and the body of
any other person, against any offence affecting the human body; Secondly.-the
property, whether movable or immovable, of himself or of any other person,
against any act which is an offence falling under the definition of theft,
robbery, mischief. or criminal trespass, or which is an attempt to commit
theft, robbery, mischief or criminal trespass. Section 99 of the Code lays down
that there is no right of private defence in cases in which there is time to
have recourse to the protection of the public authorities. It further lays down
that the right of private defence in no case extends to the inflicting of more
harm than it is necessary to inflict for the purpose of defence.
It was urged on behalf of the prosecution
that even assuming that Jamuna was in possession of the field in view of the
delivery that had taken place on June 22, 1962, he and his relations had enough
time to have recourse to the protection of the public authorities and therefore
the appellants could not claim the right of private defence. The case of Jamuna
and the appellants was that they were unaware of the alleged delivery on June
22, 1062. Admittedly neither Jamuna nor any of the appellants were present at
the time of that delivery. Nor is there any evidence on record to show that
they were aware of :the same. Further, as seen earlier, the conversation that
PWs 17 and 19 had with Jamuna on the day prior to the occurrence, proceeded on
the basis that Jamuna was still in possession of the field. Under these circum-
stances when the complainant party invaded the field on July 1 1962, Jamuna's
relations must have been naturally taken by surprise. Law does not require a
person whose property is forcibly tried to be occupied by trespassers to run
away and seek the protection of the authorities. The right of private defence
serves a social purpose and that right should be liberally construed. Such a
right not only will be a restraining influence on bad characters but it will
encourage the right spirit in a free citizen. There is nothing more degrading
to the human spirit than to run away in the face of peril.
In Jai Dev v. State of Punjab (1), this Court
while dealing with the right of defence of property and person observed (at p.
500) "In appreciating the validity of the appellants' argument, it would
be necessary to recall the basic assump- (1) [1963] 3 S.C.R. 489.
464 tions underlying the law of self-defence.
In a wellordered civilised society it is generally assumed that the State would
take care of the persons and properties of individual citizens and that
normally it is the function of the State to afford protection to such persons
and their properties. This, however, does not mean that a person suddenly called
upon to face an assault must run away and thus protect himself. He is entitled
to resist the attack and defend himself. The same is the position if he has to
meet an attack on his property. In other words, where an individual citizen or
his property is faced with a danger and immediate aid from the State machinery
is not readily available, the individual citizen is entitled to protect himself
and his property. That being so, it is a necessary corollary to the doctrine of
private defence that the violence which the citizen defending himself or his
property is entitled to use must not be unduly disproportionate to the injury
which is to be averted or which is reasonably apprehended and should not exceed
its legitimate purpose. The exercise of the right of private defence must never
be vindictive or malicious." In Horam and others v. Rex(1), a division
bench of the Alla- habad High Court observed that where a trespasser enters
upon the land of another, the person in whom the rightful possession is vested,
while the trespasser is in the process of acquiring possession, may turn the
trespasser out of the land by force and if in doing so, he inflicts such
injuries on the trespasser as are warranted by the situation, he commits no
offence. His action would be covered by the principle of private defence
embodied in ss. 96 to 105 IPC.
Similar was the view taken by a division
bench of the Hyderabad High Court in Sangappa and Ors. v. State(2).
Therein it was held that if somebody enters
on the land of a person who does not acquiesce in the trespass he would still
retain possession of the land and as the possessor of the land, is entitled to
that possession. If he brings friends with him and with force of arms resists
those who are trespassing on the land, who are also armed, he and his friends
would not be guilty of forming themselves into an unlawful assembly, for those
who defend their possession are not members of an unlawful assembly. If the
person acquiesces in his dispossession and subequently, under claim of title
comes again to dispossess his opponents, then he and his friends would be
members of an unlawful assembly.
That is also the view taken by the Madras
High Court in re.
Mooka Nadar(3) We are in agreement with the
ratio of those decisions.
(1) 50 Cr. L.J. 868. (2) I.L.R. [1955]
Hyderabad 406.
(3) A.I.R. 1943 Mad. 590.
465 On the basis of the proved facts it
cannot be said that the appellants had exceeded their right of private defence.
In the result, this appeal is allowed, the
conviction of the appellants is set aside and they are acquitted.
R.K.P.S.
Appeal allowed.
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