(1) The petitioner has challenged the correctness of the order made by the learned Second Additional Sessions Judge, Bijapur under Section 522 of the Code of Criminal Procedure.
(2) The properties bearing C.T.S. Nos. 2094 and 2097 are adjacent to each other. C.T.S. No. 2097 belongs to the 1st respondent-accused. C.T.S. No. 2097 belonged to one Hampavva who died in the year 1958. The petitioner and his adoptive mother Baslingavva claimed succession to the suit house after Hampavva's death. One Virupayya asserted his claim to the said house. The dispute was therefore, referred to a panchayat. I directed Virupayya to go to a Court of law and have his right established therein, and in the meanwhile the house was to be in possession of the Panchayat. But, Virupayya died and one Chandrashekarayya filed a suit for possession of the house against the present petitioner but the said suit was withdrawn on November 4, 1960. On November 15, 1960, Andanayya the petitioner got possession of the house from the Panchayat and continued in possession thereafter.
On the 15th or so of January 1963, Andanayya went to the village of Tondihal and returned to Alakal on January 31, 1963 and when he went to C.T.S. No. 2094 he found that the door of the kitchen of C.T.S. No. 2094 was blocked by a wall behind it. From the map it could be seen that there was a common wall between C.T.S. No. 2094 and 2097. The accused seems to have opened a door in the common wall and entered the kitchen portion of C.T.S. No. 2094. He blocked the door leading to kitchen by putting a wall behind it. The petitioner therefore, approached the accused immediately and asked the accused to remove the wall and the obstruction leading to the kitchen of C.T.S. No. 2094. He refused to do so and asked him to do what he likes.
It was then that the petitioner laid a complaint on February 1, 1963 and after necessary investigation, a charge sheet was sent against the accused-respondent No.1., and his wife. The wife was acquitted by the learned Magistrate but Respondent No. 1(accused No. 1)was convicted of the offences under Ss. 488 and 341 of the Indian Penal Code. He further found that the accused remained in unlawful possession of the room with criminal force and therefore, he made an order under S. 522 of the Code of Criminal Procedure directing him to hand over possession of the Kitchen portion of the house. The accused preferred an appeal in the Court of the second Additional Sessions Judge, Bijapur. The learned Sessions Judge confirmed the conviction and sentence of the accused on both the counts but set aside the order mad by the learned Magistrate under S. 522 of the Code of Criminal Procedure.
It is the legality of this part of the order that is being challenged in this revision petition by Shri. Andanayya Puranik for the petitioner. He contends that the learned Second Additional Sessions Judge, Bijapur erred in law in setting aside the order of the learned Magistrate made under S. 522 of the Code of criminal Procedure. According to him, he did not properly understand the scope and intent of S. 522 of the Code of Criminal Procedure and therefore he made the wrong order, which cannot in law be sustained.
(3) On the other hand, Mr. Mallimath appearing for the respondent-accused contend that on the facts of this case, the order made by the learned Second Additional Sessions Judge is correct and does not require interference. The learned Government Pleader appearing for the State supports the contention of the petitioner. Therefore, the question that requires to be determined in this revision petition is whether the order made by the learned Second Additional Judge, Bijapur under S. 522 of the Code of Criminal Procedure is a correct order.
(4) Section 522 of the Code of criminal Procedure which deals with the powers of the Court to restore possession of immoveable property reads as follows:
'522(1) Whenever a person is convicted of an offence attended by Criminal force or show of force or by criminal intimidation and it appears to the Court that by such force, or show of force or criminal intimidation any person has been dispossessed of any immoveable property, the Court may, if it thinks fit, when convicted such person or at any time within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same.
Thus, it is clear from the contents of the section that whenever the Court thinks it fit to make an order under this section, two conditions must be satisfied. They are; (i) that a person must be convicted of an offence attended by criminal force, show of force or by criminal intimidation, and (ii) that it must appear to the Court that by such force, or show of force or criminal intimidation a person has been dispossessed if any immoveable property. If these two conditions are satisfied, then, the Court may in appropriate cases, in exercise of its discretion make an order under this section directing the restoration of the possession to the person who has been dispossessed by force or show of force or criminal intimidation.
There can be no doubt that the object of this section is to prevent any person gaining wrongful possession of the immoveable property by his own unlawful and forcible act (Vide AIR 1949 Mad 191 Berankutty Haji v. C.I. Raman).
(5) The learned Second Additional Sessions Judge set aside the order made by the learned Magistrate under S. 522 of the Code of Criminal Procedure on the ground that in the circumstances of the case that the encroachment itself was done without the use of any force or show of force or criminal intimidation and the possession was obtained and thereafter when the petitioner was obtained and thereafter when the petitioner was obtained and thereafter when the petitioner went to the accused seeking restoration of possession the latter refused to do so. In his view therefore, the dispossession having taken place, when there was an encroachment which he was unable to hold that the dispossession was by show of force.
(6) Now it is clear from the contents of S. 522 that the commission of the offence must be attended by force or show of force or intimidation and it must be so connected as to constitute more or less a single event or a single transaction and the dispossession must be a direct consequence of the force or show of force or criminal intimidation. Further the use of force or show of force or criminal intimidation must reference to a person and not with reference to the property, vide AIR 1949 All 228 Mahabir v. Rex.
(7) The learned Sessions Judge erred in thinking that the moment the accused stealthily committed the offence of trespass and occupied the kitchen portion of C.T.S. No. 2094, the petitioner was dispossessed. The accused has no doubt committed trespass stealthily and by committing such an offence entered into possession in the absence of the person in possession. But a trespasser when he takes such possession cannot merely by the act of trespass constitute himself into a person in possession. It must be held that in such circumstances dispossession of the complainant does not become complete till the complainant appears on the scene, protests against the trespasser and when he seeks possession and the possession was refused to him by the trespasser by force or show of force. The accused in this case, as is clear from the evidence, told the complainant that he is not going to restore the possession of the kitchen and he should do whatever he likes. This clearly suggests that in case the complainant tries to take possession, he would use force.
The complainant who is in juridical possession of the kitchen portion of the house C.T.S. No. 2094 cannot be said to be dispossessed as soon as the trespasser occupied the kitchen portion. The transaction, as I have stated earlier must be taken as a whole, and it is clear from the charge sheet in this case that the accused committed an offence between the January 15, 1963 and January 31, 1963 the petitioner-complainant went to the accused and asked him to restore possession, he refused to do so. Thus the transaction being a single transaction, the dispossession of the kitchen portion of C.T.S. No. 2094 must be held to have taken place when the petitioner went to ask the accused to restore possession and the accused refused to do so, by force or show Additional Sessions Judge that dispossession has taken place when the trespass was committed is wrong.
(8) It has been observed in AIR 1949 All 228 that:
'We think that there shortly after the commission of the offence, the true owner becoming aware of the trespass committed in his absence goes to the spot to regain possession of his land and is prevented from doing so, by the accused showing readiness to fight if attempt were made to regain possession, the case would be covered by S. 522 Cr.P.C. and an order for restoration of possession can be passed by the Court.'
This decision has been quoted with approval by this Court in the decision reported in 1959-37 Mys LJ 531: (AIR 1960 Mys 24), Alakal Senappa v. State of Mysore.
(9) The High Court of Bombay in the case of Francis D'Souza v. E.A.L. Gameiro, AIR 1960 Bom 139 approving the ratio of the said decision held that when a trespasser enters into the property in the absence of the person in possession, the latter when he comes to know of the trespass, has still the right without recourse to a Court of law to try to secure possession back from the trespasser.
(10) The High Court of Patna in Rajbanshi Thakur v. Chandey Jha, : AIR1951Pat307 has held that:
'Where a criminal trespasser enters upon property and prevents the rightful possessor from coming into possession of it, dispossession is said to have taken place, and, if the trespasser was guilty of some force or limitation when he prevented the other party from entering upon the property, a Magistrate would be justified in taking action under S. 522 Cr.P.C.'
I respectfully agree with the decisions stated above and hold that that being the true position of law, the view taken by the trial Magistrate is a correct view to take and therefore, the learned Second Additional Sessions Judge, Bijapur was in error in setting aside the order of the learned Magistrate passed under S. 522 of the Code of Criminal Procedure.
(11) In the result, I allow this revision petition, set aside the order made by the learned Second Additional Sessions Judge, Bijapur, and restore the order made by the learned Magistrate.
(12) Revision allowed.