Smt. Bina Das vs State of Orissa

A.S. Naidu, J.—This Criminal Appeal challenges the judgment passed by the 2nd Addl. Sessions Judge, Cuttack in S.T. No. 519 of 2001 holding the appellant guilty of the offence u/s 3(1)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as ''the Act'') and convicting her thereunder and sentencing her to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 500.00, in default to undergo further rigorous imprisonment for one month.

One Laxman Jena, the complainant, filed a Complaint Case before the S.D.J.M. (S), Cuttack which was registered as ICC NO. 3 of 1994, alleging that he was the exclusive owner of the case land and had constructed his house thereon. He had inducted one Babaji Mallick as a tenant in his house and then in 1972 he inducted one Jagannath Jena as tenant who used to pay rent to him. It is alleged that said Jagannath Jena sub-let the case house to the Socialists Unity Centre of India (SUCI for short) and appellant Smt. Bina Das occupied the case house stating to be representing the said organisation. It was averred in the complaint petition that the complainant being a ''PANA'' was a member of a Scheduled Caste and appellant Smt. Bina Das who was not a member of any Scheduled Caste was in forcible occupation of his house without any authority and thus committed an offence punishable u/s 3(1)(iv) of the Act.

The defence of the appellant was that the complainant was not a member of a Scheduled Caste, but a member of general caste his surname being ''Jena'' and further the possession of the case house by her was neither wrongful nor unauthorised.

It appears that the complainant had filed a civil suit, being T.S. No. 26 of 1989, in the Court of the Civil Judge (S.D.), Cuttack for declaration of his title over the suit house and eviction of aforesaid Jagannath Jena and the present appellant who were impleaded as defendants in the said suit. After hearing the said suit was dismissed against Jagannath Jena and was decreed ex parte against the present appellant. The appellant thereafter filed a Misc. Case before the Civil Judge (S.D.), Cuttack under Order 9, Rule 13, CPC for setting aside the ex parte order passed against her, which having been dismissed, she challenged the said order of dismissal of the Misc. Case before the District Judge, Cuttack which was numbered as Misc. Appeal No. 91 of 1998 and was transferred to the file of the 2nd Addl. District Judge, Cuttack. In the said Misc. Appeal, an order staying execution of the decree in the aforesaid Title Suit had been passed. It appears that complainant also preferred an appeal against the judgment passed in the Title Suit dismissing the suit against Jagannath Jena before this Court which is also sub judice. Thus the findings arrived at in the Title Suit has not become final yet.

In the Sessions Trial, the complainant examined two witnesses and exhibited eight documents and on behalf of the appellant no witness was examined, but one document was exhibited. The learned Addl. Sessions Judge-cum-Special Judge after discussion of the evidence, both oral and documentary, came to the conclusion that ownership of the complainant over the case house had been found by Civil Court (in T.S. No. 26 of 1989) and the said fact was established from the record-of-rights (Ext. 8) and the tax-receipt (Ext. 3). It was also held that the appellant was possessing the said house of the complainant. The trial Court further held that the complainant being a ''PANA'', was a member of a Scheduled Caste and that the appellant was not a member of Scheduled Caste/Scheduled Tribe. So far as question of wrongful possession was concerned, relying upon the finding of the Civil Court in the aforesaid T.S. No. 26 of 1989, the learned Trial Court found the appellant to be a trespasser. Relying upon the decision in Varadaraja Chettiar Vs. Swami Maistry and Others, , the trial Court came to the conclusion that Criminal Court is not entitled to disregard the decree of a Civil Court declaring rights to the identical property in dispute in a Criminal Case. On the basis of such conclusion, the trial Court held that the appellant who was not a member of Scheduled Caste/ Scheduled Tribe, being admittedly in unauthorised occupation of the property belonging to the complainant who was a member of a Scheduled Caste, the offence alleged against the appellant had been established and thus holding the appellant guilty, convicted and sentenced her as stated above.

Mr. S.K. Misra, learned counsel for the appellant, submitted that the surname of the complainant being ''Jena'' and ''Jena'' being not declared as a Scheduled Caste in the List appended to the Scheduled Castes and Scheduled Tribes Act, the trial court acted illegally in holding that the complainant was a member of a Scheduled Caste. I am not inclined to accede to such submission. Admittedly the complainant produced in Court the caste certificate (Ext. 1) issued in his favour by the competent authority which clearly showed that he was a ''PANA'' by caste, which is no doubt a Scheduled Caste, whatever be his surname.

The next contention raised on behalf of the appellant is that possession of the case house by the appellant cannot be construed to be unauthorised so as to attract the rigours of Section 3(1)(iv) of the Act. It is submitted that the complainant himself admitted that he had let out the house in question to one Jagannath Jena and the present appellant came to possess the same through said Jagannath Jena. Further admittedly the complainant had filed a civil suit praying for declaration of his title to the suit house and for eviction of the appellant who was alleged to be in unauthorised occupation thereof. The decision of the Civil Court being challenged, is pending in appeal and as would be apparent from Ext. A produced before the Special Court, i.e. the order in Misc. Appeal No. 191/98, execution of the ex parte decree passed by the Civil Court against the present appellant has been stayed. Thus the decision of the Civil Court has not attained finality.

A perusal of the pleadings and the facts as submitted before the trial Court and reflected in the impugned judgment would clearly reveal that the complainant had admitted induction by him of one Jagannath Jena as a tenant in respect of the suit property. The appellant is claiming possession over the suit house through said Jagannath Jena. There is no iota of evidence to the effect that at any point of time, possession of the appellant was declared to be unauthorised. It was also nobody''s case that any notice was ever issued to the appellant to vacate the suit house alleging her possession to be unauthorised. No such document was filed before the trial Court. Possession of the appellant who claimed her right to possess through Jagannath Jena, who was admittedly inducted by the complainant as a tenant, could not ipso facto be unauthorised. Her possession might be that of a sub-tenant or can be nomenclatured as a tenant holding over, or a tenant in sufferance, as the case may be. This aspect has not been kept in mind by the trial court. It is not a case that the case house had remained vacant and the appellant, without any authority walked into it and possessed it. Her possession flowed from Jagannath Jena who was occupying the house in question, admittedly being inducted as a tenant by the complainant who was the absolute owner thereof. The initial entry of Jagannath Jena being permissible, possession of the appellant who stepped into the shoes of Jagannath Jena cannot at the outset be held to be unauthorised. The trial Court appears to have lost sight of this legal aspect and proceeded on the footing that the Criminal Court was bound by the decision of Civil Court. This reasoning, according to me, is not correct in the present case. Admittedly a civil suit was filed by the complainant. The same was decreed ex parte against the appellant and dismissed against Jagannath Jena. Being not satisfied with the decision of the Court below, the complainant himself has preferred an appeal before this Court which is sub judice. The appeal being a continuity of the suit and the complainant having himself filed the appeal, it cannot be said that the decision of the Civil Court has become binding and on the basis of which the Criminal Court could proceed. Thus the reasonings given by the Special Judge suffer from the vice of non-consideration of the fact that the civil suit is still sub judice and the decision/finding of the Civil Court has not yet attained finality.

Apart from the aforesaid facts, admittedly the appellant has challenged the ex parte order passed in the suit by filing Misc. Appeal No. 191 of 1998 which is pending before the Addl. District Judge, Cuttack. As would be evident from Ext. A, the certified copy of the order passed in the aforesaid Misc. Appeal, the execution of the aforesaid ex parte decree has been stayed which also corroborates the fact that the decision of the Civil Court in the Title Suit has not attained finality.

In course of hearing, it appeared that the parties are litigating for more than a decade. Admittedly the complainant is the owner of the house in question and the appellant is in possession thereof, whatever may be her status. The complainant is an old man. Pendency of such litigation, both in Civil Court and Criminal Court, according to me will not be in the interest of any of the parties. To shorten the litigation, I directed the learned counsel for the appellant to obtain instruction as to whether the appellant was ready and willing to vacate the disputed house and in consonance of the same, an undertaking on behalf of the appellant has been filed in Court by one Biswabasu Das, son of Sri Keshab Ch. Das of Peyton Sahi, P.O. Buxi Bazar, P.S. Purighat, Town and District-Cuttack to the effect that the appellant is ready and willing to vacate the premises in question within a period of one year and the undertaking has also been duly signed by the learned counsel for the appellant. But then, according to me, six months'' time to the appellant to vacate the premises would be just and proper in the interest of the parties.

Therefore, while setting aside the impugned order of conviction and sentence passed against the appellant, I direct that the appellant shall vacate the disputed premises within six months from today as agreed to by learned counsel for the appellant in Court, and shall also pay the admitted rent for the said premises for the coming six months, failing which she shall be liable for contempt of this Court for violating the undertaking given before this Court. The appellant is also directed to clear up all the arrears of rent payable to the complainant, failing which the complainant will be at liberty to realise the same in accordance with law. The Criminal Appeal is thus allowed. The appellant who is in custody be released forthwith.