Ram Janam Singh vs Mohan Lall Ahir

James, J.—These proceedings arise out of the sale of a house in execution of a certificate issued under the Public Demands Recovery Act. The purchaser whoso servant is the petitioner before the Court, obtained a writ of delivery of possession, which was taken by the Nazir of the Gaya Collectorate to the house on 9th October 1934. The certificate-debtors prayed for time to remove their property from the house; and they began to remove their property but remained in possession. On the following day they moved the Certificate Officer for time to remove their property from the house; and the Certificate Officer granted them three weeks time for that purpose. On 11th October they filed a petition praying that the sale might be set aside under S. 29, Public Demands Recovery Act, which was entertained by the Certificate Officer, who then recalled his writ of delivery of possession. On the evening of the 12th the petitioner attended the. Gaya Kotwali Police Station where it was stated that possession had been delivered to the purchaser on 9th October but that very early on the morning of the 12th, the certificate-debtors with a number of other men had forced an entrance to the house. A complaint to the same effect was made before the Sub-Divisional Magistrate on 31st October. The Sub-Divisional Magistrate, after examining the complaint and reading the Police report, came to the conclusion that possession has not been actually delivered on 9th October and dismissed the complaint under S. 203, Criminal P.C. On application made to the District Magistrate, he declined to interfere with this order.

It is argued on behalf of the petitioner that possession was actually delivered on 9th October so that the making of a forcible entry on the night of the 12th amounted to criminal trespass, so as to bring the action of the accused persons within the provisions of S. 448, I.P.C., but the Sub Divisional Magistrate has come to the conclusion that no delivery of possession had actually taken place; and this indeed would appear to be obvious. The Nazir may possibly have thought that delivery of possession of the house was a mere formal act effected by beating a drum and putting up a notice; but actually in order to effect delivery of possession of an inhabited house, it is necessary to eject the former occupier, and it appears to be clear that the purchaser had never taken actual possession of the house. On 9th November the Certificate Officer rejected the debtors'' petition under S. 29, Public Demands Recovery Act, and directed the writ of delivery of possession should re-issue, but on 10th November the Certificate Officer, noting that the Nazir had delivered possession on 9th October, remarked that there was no need to re-issue any further writs. Whatever the Nazir may have reported, it should have been obvious that possession had not actually been delivered to the purchaser and the writ which had been recalled should then have been re-issued; but it is impossible in this case to treat the certificate-debtors as having committed an act of criminal trespass, and the order of the learned Sub-Divisional Magistrate was correct. This application must be dismissed.