Full Judgment Text
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PETITIONER:
MUNSHI RAM AND OTHERS
Vs.
RESPONDENT:
DELHI ADMINISTRATION
DATE OF JUDGMENT:
27/11/1967
BENCH:
HEGDE, K.S.
BENCH:
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 cormplainant’s party from taking forcible
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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
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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.
JUDGMENT:
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
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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
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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
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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
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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
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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,
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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 some body 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.
466