MUNSHI RAM AND OTHERS versus DELHI ADMINISTRATION

MUNSm RAM AND OTHERS

DELffi ADMINISTRATION

November 27, 1967'

[S. M. S!KRI, J. M. SHELAT AND K. s. llEGDE, JJ.]

Indian Penal Code, 1860, ss. 91, 447, 324, 149 and 148--Comp/ainant purchasing in public auction land c.cquired· by Central "Government under the Displaced Persons Act, 1954---'1fter issue of sale certificate Govern-ment purporting to give him delivery through warrant issued by Monaging Officer---1'fject of-Another person proved to be tenant and i.n possession--complainant's party on attempting to take possession c; repelled by force-whether right of private defence existed or acceded.

Displaced Persons Act, 1954 s. 19(3)-&ope of.

Certain land which was evacuee property acquired by the Central Government under the Displaced Persons Act, 1954 ancl under the management of the Managing Officer, was purchased by at public auction on January 2, 1961. Pro,isional delivery of the property was given to the vendec on October 10, 1961. sale certificate was issued to him on February 8, 1962, and the actual delivery was given on June 22, 19'62, on warrant issued by the Managing Officer.

On July 1, 1962, when A, accompanied by party, went to the land w'.th tractor to level the land, the appellants attacked the complainant's party ancl caused injuries to some of them. Upon their subsequent proseeu-tion, 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 bi.. 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 com-plainant'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 ancl 148 IPC.

On appeal to this Court,

HELD : Allo .ving the appeal : On the basis of the proved fact• it could not be said that the appellants had exceeded their right of private defence. 465 Al

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 Lsue of the sale certi-ficate to A, the Government had no interest in the land and. the managing officer was not therefore competent to evict J. He had no interest in the land on June 22. 1962 and' could not have issued any warrant for the deliverv of the field on that date. The alleged delivery therefore bad no legal force; in the eye of the law it was non-est. [461 Bl

There was n1> force in the contention that the delivery ln question was effected under s .. 19(3) of the Displaced Persons Act, 1954. The provi-sions of that Section annlv onlv to propertie• which are under the control of the managin2 officers or managin2 corporations and not to properties which have ceased to be evacuee properties. Furthermore, it was . not

shown that any action under sub-sections (1) and (2) of s. 19. which was condition precedent for taking ac1ion under sub-section S3), bad been taken a~ainst J. [460 HJ

Normally before tenant can be c\icred from bis holdinJ?. his tenancy mu't be terminated and the eviction should be done through Court of competent jurisdiction. who had become the owner of the land long hcforc June :!2. 1962 couJ<l not have evicted J from the land in the manner alleged. [459 EJ

Lallu Yeshll'n111 Singh v. Rao lagdish Singh mu/ 01/iers, [1968] 2 S.C.R. '.!03.

It could not be soid that os had. rightly or wrongly, taken possession of the property on June 22. I 962, J should have agitated the matter in court of law and the appellonts had no right to take the Jaw in their own hands. The fact that some formalities were gone throu$ in pursu-ance of an unauthorised delivery orc.kr was no ground for holding th:tt ros'es.ion of the field hod passed to A.

It is true that no one including the true 0\1,:ner has right 10 <lisposscs.~ the trespasser by force if the trespasser is. in settled possession of the land .ind in such case unJess he is eviclcd in due course of lavt, he is entitled to defend his possession even against the righlfut owner. llul stray or even intermittent a'-ls of trespass do not give such right against the true owner. 1bc passession which trespasser is entitled to defend a.i?ainst the riahtful owner must be settled possession extcndinJ.t over sufficiently long period and acquiesced in by the true owner. casual act of posses-sion "M'ould not have the effect of interrupting the possession of the right· ful owner. The ridltful ov.·ner mav rc~nter and rcins1ate himself provided he doc-; not use more force than nc.cessacy. Such entry v.·ill he viewed only as resistance to an intrusion upon possession which has never been lost. The persons in possession by stray act of trespass. possession \\'hich has not matured into settJed passcssion. constitute an unlawful H'i\Cmhlv. giving right to the true ov.:ner, though not in actual possession at the time, to remove the ohstruction even by usin~ neces-:'arv force. 1462 R-EJ

From the proved facts. it was e\ident that and his party. of whom one wa.11 anncd, had gone to the ficJd with view to intimidate J and to :issert their passession. They were therefore guiJty of c;riminal trespa~s and al'iO constituted an unh1v.·ful assemb1v. The al)peltnnts u.·erc therefore ~ntillcd 10 prevent •hem. b~· u11ing ncce~~;1ry force, from laking possession. !462 H!

Jn re Jo11ali Bhai110 Nnik.< and Anr. AIR 1927 Mad. 97. lei Dev v. State of Punjnh, [1963] 3 S.C.R. 489: //oram nncl other.< v. Rex. 50 Cr. U. X68: San.~appa and Or.<. v. Sta'.e. ILR 11955) Hyderabad 406; in re Monka Nadar, AIR 1943 Mad. 590, relied upon.

CRIMINAL APPELLATE JuRISDlCTIO?" : Criminal Appeal No. 124 :>f I 965

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.

Rltawani Lal, Kartar Si11gh Stiri and E. C. Agrawala for P. /?rawa/a, for the appellants.

R. ,V. Sachthey, for the respondent.

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'? .B 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 sum of Rs. 7,600. Provisional delivery of that property was given to the yendee on October 10, 196 l. 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 oflicer. The said delivery was effect-:D ed by PW I 0 Sham Da, Kanungo. On July I, 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 trac-tor to level the land. the appellants came anned with spears and lathis attacked the complainants' party and caused in.juries 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 rela-tion Jamuna ( DW 3) was the tenant in the land for over thirtv years. His t~nancy was never tem1inated. He had raised. crop's ' in the 1962. · field If there in question. was any delivery There was as no deliver} qn June 22. alJeged by the prosecu-tion, the same was without the_ authority of law and as such wa~ of no effect. Hence, Jamuna continued to be in posses-sion of the property even on July I, 1962. On the day prior to the occutTence, 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 view to forcibly assert their right to .the pro-perty, the complainant-party came to the field in body on July 1. 1962 ·with tractor. At that time PW 19 was anned 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 com-plainant party to clear out of the field. When they refused to do

so, they pushed them and thereafter used minimum force to throw them out of the field. 0n 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 inci-dent took place. The appell<1nts 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 i;>lead self-defence, it is open to the court to consider such plea 1f the same arises from the material on record-see In re Jogali Bhalgo Nalks 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., ori July 1, 1962. For deciding that 'que.stion 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 sai<! 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 posse.ssion of that field as 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 Pakis-tan, under the officer managing the evacuee property. This evi-dence of his was not challenged in cross.examination. That evi-dence is supported by the prosecution exh. PT. Tho courts below have also proceeded on the! basis that Jamuna was in possession of the field till June 22, 1 962. Therefore, we have to see whether there was any lawful delivery of th~t 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 gov-ernment had no interest in that field on or after the aforementioned sale. It is not the case of the prosecution that Jamuna's tenarJly had been terminated by any of the authorities constituted under

the Displacl!d Persons (Compensation and Rehabilitation) Act 19 54 (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 govern-ment 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 deli-very warrant issued by PW 5, the managing officer. Even accord-ing to the prosecution version, _at the time of that delivery J amuna ~ was not present. There is also no evidence to show that J amuna was aware of the alleged delivery. It is true that as token of tbc 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 portion of the field. It was said that the kanungo who deli-D vc;ed the field, vplued the crops in question at Rs. 60 and the same was deposit~ 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 tenant can be evicted from his holding. his tenancy must be terminated and the eviction should be done through 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 Lal/u Yeshwant Singh v. Rao Jagdish Singh and others('). Therefore, it is clear that PW 1 7 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 a5 he could have, namely, the land-lord'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 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. en [196SJ 2 s.c.R. 20J.

Before the courts below it was pleaded on behalf of the prose-cution-which plea commended itself to those courts--that the delivery in question was effected under s. 19 of the Act. section 19. 10 the extent it is material for our present purpose, reads thus :

.. I I l Notwithslanding anything contained in any con-lract 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 manag-ing corporation may cancel any allotment or tenninate any lease or amend the terms of any lease or allotment under which any evacuee pro-perty acquired under this Act is held or occupi-c ed by per>on, whether such allotment or le<•s.: was granted before or after the commcme-ment of this Act.

I 2) Where any person-( a) has ceased to be eniitkd to the possc"ion of any evacuee property by reason of a~y action taken under sub:section (I ) , or ( l is otherwise in unauthorised po~se.s­sion of any evacuel! property or any other im-movable property forming part of the compen-sation pool: he shall, after he has been given reasonable opportunity of showing cause again>t his eviction from such property, surrender p<l'>-E scssion of the property on demand being made in 1his behalf by the managing officer or manag-ing corporation or by any other person duly authorised by such officer or corporation.

( 3) If any person fails to surrender possession or any property on demand made under sub-section ( 2) the managing officer or managing cor-poration may, notwithstanding anything to the: contrary contained in any other law for the time being in force. eject such person and take posses-sion of such property and may, for such purpose, use or cause to be used such force as rllay b<! necessary."

The above provisions apply only to.properties which are. under

the control of the managing officers or managing corpomtions. · They do not apply to properties which have ceased to be evacuee properties. Further, it is not the prosecution case that any action unller sub-ss. I and 2 of s. 19 had ever been taken against Jamunn. If that was so; ao action under sub-s. 3 of s. 19 could have been taken. As condition pte<;edent for taking action under sub-s. 3 of s. I 9 it was necessary to take the steps prescribed hy 'ub-s. 2

of s. 19. It must be noted that the power conferred under sub-s. 3 is special power conferred for special purpose. Such power has to be exercised strictly in accordance with the condi-tions 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 ori: June 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 paper delivery. In his chief-examination, DW 3, Jamuna, deposed thus :

"A day prior to the occurrence, R. P. Dutta and his spn 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 will-ingly, they would get -possession of the same by force under the pressure of the police. All 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 con-tinued 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 right)y 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 L!Sup(CI)/68-15

the same in court of law, and that his relations had no right to take law into their own hands. This contention is based on 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 fonnalities were gone through in pursuance of an unauthorised order issued by PW 5 is no ground for holding that po&session of the field had passed into the hands of PW 17. Steps taken by PW 17 and others wh.o accompanied him on June 22, 1962 were unauthorised acts. It is true that no one includ-ing the true owner has right to dispossess the trespasser by force if the trespa~ser is in settled possession of the land and in such 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 intennittent acts of trespass do not give such right against the true owner. The possession which trespasser is entitled to defend against the rightful owner must be settled ~ession extending over sufficiently loni_period and acquiesced m by the true owner. casual act of possession would not have the effect of interrupting the possessiou_-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 view.ed only as resistance to an intrusion up(>n possession which has never been lost. The persons in possession by stray act of trespass, ~<ession which has not matured into settled posses-sion, 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. lt is not the case of the prosecution that between June 22 and July I, 1962 the complainant or his men had been to the field in question. We have earlier seen that PWs 17 and 19 had un-successfully tried to intimidate Jamuna on June 30, I 962 to deliver peaceful possession o( the field. It is only thereafter on July I, I 962, they along with their friends went to the field with tractor, and at that time PW I 9 was anned 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 anned 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 result of which PW 17. PW 19 and the tractor driver Acharya were injured (see .evidence of PW 19, R. P. Dutt). The iniuries 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 anned with

deadly weapon, with view to intimidate Jamuna and to assert their possession. Therefore they were clearly guilty of criminal trespass. They also constituted an unlawful as~embly.

The law relating to defence of property is set out in s. 97 IPC, which says that every person has 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 inunovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mis-chief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trt<spass. 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 autho-rities. 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 J amuna 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, 1962. 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 eadier, the conversation that PWs 17 and 19 had with Janmna 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 l, ' 1962, Jamuna's relations must have been naturally taken by sur-prise. Law does not ·require person whose property is forcibly tried to be occupied by trespassers to run away and seek the pro-tection of the authorities. The right of private defence serves social purpose and that right should be liberally construed. Such right not only will be restraining influence on bad characters but it will encourage the right spirit in 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('), this Court while dealing with the right of defence of property and person observ,ed (at p. 500)

"In appreciating the validity of the appellants' argu-ment, it would be necessary to recall the basic assump-

tions u,nderlylllg tile law of self-defence. · In well-•miered civilised society it is generally assumed that the State would take care of the persons and properties" of individual citizens ,and that nonnally it is the function of the State to afford p,rotection to such persons and their properties. This, howevct, does not mean that 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 danger and immediate· aid from the State machinery is not readily available, the individual citi-zen is entitled to protect himself and his property. That being so, it is 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 exerciseof the right of private. defence must never be vindictive or malicious."

In Haram and others v. Rex('), division bench of the Alla-habad High Court observed that where trespasser enters upon the land 'of another, th~ person in whom the rightful possession is vested, while the trespasser is in the pi;ocess of acquiring posses-sion, may tum the trespasser out of the land by force and if in doing so, he inflicts such injuries on the trespasser as are wiirrant-ed 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 division bench of the Hyderabad High Court in Sangappa and Ors. v. State(•), Therein it was held that if some body enters on the land of person who doe's not acquiesce in the trespass he would stilt retain possession of the land and as the possessor of the land, is entitled to that possession. If lie brings friends with him and witJ:t force of arms resists those who are trespassing on the land, who are also armed, he and his friends would not be guilty or forming themselves into an unlawful assembly, for those who defend their possession are not members of an unlawful assembly. If the per-son acquiesces in his dispo,ssession and subequently, under claim of title comes again to dispossess his opponents, then he and ·his friends would be members of an unlawful a5sembly. That is also the view taken by the Madras Hi~ Court in re. Mooka Nadlir([8]). We are in agreement with the ratio of those decisions.

(2) I.L.R. [1955) Hyderabad 406.

(I) 50 Cr. L.J. 868.

(3) A.T.R. ~943 Mad. 590.

On the basis of the proved facts it cannot be said that the appellants had exceeded their right cif private defence.

In the result, this appeal is allowed, _the conviction of th~ appellants is set aside and they are acquitted.

A{Jpeal a/lmvt'd.