Manohar Lal Mangal vs Samanta and Others

M.M. Gupta, J.—This appeal has been filed by the complainant Manohar Lal Mangal against the acquittal of the Respondent u/s 447 IPC.

Respondent Samanta is the husband of Smt. Naraini Respondent No. 2 and Respondent Nos. 3 and 4 respectively Balbir and Jasram are their sons.

According to the complaint filed by Manohar Lal Mangal, Appellant his wife Smt. Radharani owns a property in Civil Lines, Mathura. It includes two shops on the road side and a room on the back of it. There is also an open space like an Again enclosed by walls on all sides. Out of the two shops one shop and the room behind it were in the tenancy of Samanta. The Rasta of the room was through the Again which was in the possession of Smt. Radharani. Smt. Radharani obtained a decree for eviction of Samanta from the shop and the room in Suit No. 392 of 1972 on 26-03-1974, The Dakhaldihani in pursuance of that decree took place on 05-04-1974 through a lawyer Commissioner. At the time when the Commissioner went to deliver the possession Samanta and other Respondents tried to pick up a quarrel with the complainant and indulged in the Marpit and a report in that connection was also lodged at the Police Station. On the 18th April 1974 at some odd hour of the night the Respondents took unauthorized possession of the Again. On 19th April 1974 on coming to know of the trespass a report was also lodged at the Police Station in that connection. Thereafter a registered notice was given to the Respondents. Out of those notices Balbir and Smt. Naraini refused to accept them. On behalf of the Respondents reply to the notices was also given by a lawyer. Since the Respondents had committed a criminal trespass a complaint was filed on 11th May 1974.

Respondent Sam anta admitted that be was the tenant of Smt. Radharani. He also admitted that a decree for eviction was passed against him and the Dakhaldihani was given against him on 05-04-1974. He denied that he committed any criminal trespass on the Again in question. He claimed that he is not in possession over that portion of the property from which he was evicted. The other Respondents Balbir and Jasram claimed that they were made an accused as they were the sons of Respondent Samanta. Smt. Naraini also claimed that she was made an accused because she was the wife of Respondent Samanta.

The prosecution in support of its case examined Ram Krishna Chaturvedi. The other witnesses of fact examined are Manohar Lal Mangal complainant himself as PW 5, Harinder Kumar PW 1 and PW 3 Ramesh Chandra Gautam, PW 4 S.P. Chaturvedi is a formal witness.

The learned Special Judicial Magistrate who decided the case came to the conclusion that the Dakhaldihani in this case was obtained only over the shop and the room in the tenancy of the Respondent Samanta but no possession was delivered over the Angan. In such circumstances he held that it was not a case of criminal trespass and as such the Respondents were entitled to acquittal.

The learned Counsel for the Appellant has contended that the findings of the learned Special Judicial Magistrate were perverse.

It is not disputed that Smt. Radharani had obtained a decree for eviction against Respondent Samanta. The decree describes the property from which the Respondent Samanta was to be evicted as: ''Ek Dukan, Ek Kamra Jo 10 Civil Line Mathura Men Hai". The decree was executed by Sri Ram Krishna Chaturvedi PW 2 who went to deliver the possession. His report is also on the record. Sri Ram Krishna Chaturvedi PW 2 deposed that he had delivered possession of the property to Smt. Radharani in accordance with the terms of the aforementioned decree. He has stated:

Yeh Dakhal Maine Ek Dukan Va Ek Kamre Ka Vadini Radharani Ko Dilaya-Isi Men Se Sab Saman Nikalwaya.

He further states:

Kamra Ke Bad Ek Angan Khuli Jagah Hai Jiska Ghera Bana Hua Hai. Uske Poorab Men Gali Hai, Saman Samanta Ka Jo Kamra, Dalan, Va Angan Men Tha Sab Nikal Diya Tha Koee Bhi Baki Nahin Chhora Gaya Tha Aur Sare Saman Ki Pheharist Banai Gayee Thi.

After some resistance by the judgment Debtor or his sons, his son after some time took possession over the movables taken out from the decrial property. He has reasserted in cross-examination, "Jisme Angan Sarnmilit Tha". The learned Special Judicial Magistrate has not relied on the testimony of Ram Krishna Chaturvedi when he stated that he had delivered possession over the Again also on account of the fact that it was not mentioned in the Dakhaldihani or the decree that the Respondent was to be evicted from the Again. That may be true but the Respondent Samanta or any other Respondent does not claim that they were also tenants of the Again. They do not claim any right in the Again. There was, therefore, no question of their eviction from the Again. Even if it be presumed that they were in possession of the Again along with the room or the shop they could not remain in its possession after the decree for their eviction was executed against them. Thus, they had no right in the Again whatsoever. They had neither the tenancy rights in the Again nor any other right in it. Even if it be assumed that they were not evicted from the Again but they had no right in the Again, they would become criminal trespassers within the meaning of Section 441 paragraph (2) after they failed to withdraw from the land after the receipt of the notice to vacate it as provided u/s 441 IPC. It is not disputed that the notice was not given and its reply was received by Smt. Radharani. In such circumstances the learned Special Judicial Magistrate committed illegality by not holding that it was a case of criminal trespass. On the facts and merits of the case the view taken by the learned Special Judicial Magistrate could not be taken.

The offence of criminal trespass in this case was clearly made out u/s 447 IPC. All the Respondents were guilty of it. The order of their acquittal is therefore, set aside. In the circumstances of the case proper sentence against the Respondents should be a fine of Rs. 50/- (rupees fifty) against each one of them. In default of payment of fine they shall undergo rigorous imprisonment for three weeks.

The appeal is, therefore, allowed. The order of acquittal of the Respondents is hereby set aside. Each one of the Respondents; is convicted u/s 447 IPC and each one of them is sentenced to pay fine of rupees fifty (Rs. 50.00). In default of payment of fine they shall undergo rigorous imprisonment for three weeks.