P.N. Goel, J.
1. Decision of this appeal preferred by Chhidda Lal against the order dated 30-7-1979 passed by the 1st Additional Sessions Judge, Ghaziabad in Criminal Appeal No. 91 of 1978 acquitting respondent Bal Swarup, real brother of the appellant of an offence punishable under Section 448, I.P.C. depends upon an interpretation of Section 441, I.P.C. as amended in the year 1961' in the State of Uttar Pradesh.
2. Section 441, I.P.C. defines 'Criminal Trespass'. After the amendment of the year 1961, Section 441 runs into two paragraphs which are reproduced below:
1. Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,
2. or having entered into or upon such property, whether before or after the coming into force of the Criminal Law (U. P. Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice is said to . commit 'criminal trespass'.
3. It is undisputed that the first paragraph of this section is not applicable to the present case. The case of the appellant hinges on the second paragraph. The second paragraph can easily be divided in two parts, (1) whoever having entered into or upon such property (such property means property in possession of another), with the intention of taking unauthorised possession or making unauthorised use of such property, and (2) fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice.
4. In the present case the dispute relates to a shop situated in the town of Dadri. It is undisputed that the complainant gave notice to the respondent on 5-7-1977 calling upon him to vacate the shop by 31-7-77. As the respondent did not vacate the shop the appellant filed complaint before the Magistrate on 1-8-1977. It will thus be seen that the complainant made compliance of the second part of para 2.
5. It is to be seen in the present case whether the case of the respondent falls within the first part of the second paragraph referred to above. It means that the complainant has to show that the respondent had entered upon the shop with the intention of taking unauthorised possession or making unauthorised use of the shop,
6. In order to constitute an alleged offence there should be a criminal mens rea The word 'with the intention of taking unauthorised possession or making unauthorised use of such property' indicate the mens rea of the offender.
7. The factory of the present case will now be examined. The complainant alleged in his complaint that there was partnership between him and the respondent, that the said partnership came to an end in the year 1974, that thereafter he asked the respondent to vacate the shop, that the respondent went on evading, that the appellant did not take immediate action against the respondent because he was his real brother and that when he noticed that the respondent had dishonest intention, he gave notice to the respondent on 5-7-77, which was duly served upon him.
8. Defence of the appellant was that he was tenant of the shop from the year 1959 and that there was no partnership between him and the appellant.
9. In support of this case Chhidda Lai complainant examined himself as P.W. 1, Magtu Singh (P.W. 2) and Gajjan Singh (P.W. 3) and filed some documents. On the other side the respondent examined a common relation Chandrabhan Singh (D.W. 1). Statement of Chandrabhan Singh was recorded on 10-1-1978. On 25-1-1978 the respondent moved an application for filing some papers. These papers included an application dated 20-12-1974 for deposit of rent under Section 30 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, order dated 12-7-1975 passed by II Munsif on the said application and notice of the application under Section 30 of the said Act issued to the appellant. The order of the Munsif mentions that notice of the application was served upon the appellant and that the appellant was absent. The application was allowed and the respondent was permitted to deposit rent in court. The appellant then filed affidavit that he was not served with the notice of the application under Section 30.
10. The Magistrate considered the entire material and came to the conclusion that the respondent was guilty of the offence punishable under Section 448 I.P.C. Consequently the Magistrate convicted the respondent and sentenced him to pay a fine of Rs. 500. He further directed that the respondent be evicted from the shop.
11. Against this order the respondent filed an appeal before the Sessions Judge. The appeal was heard by the 1st Additional Sessions Judge, Ghaziabad. The appeal was allowed on the ground that the case was more of a civil nature than of criminal nature. The Additional Sessions Judge gave two reasons for coming to the said conclusion (1) the complainant had failed to prove that there was partnership business between the parties and that the partnership business had wound up in the year 1974 and (2) the notice of the application under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act, was served upon the appellant, that the appellant did not file any objection, that meant that he had nothing to say. The appellant had not filed any suit for declaration that there was no relationship of landlord and tenant between the parties.
12. The first question which has to be determined in this appeal is whether the appellant had proved that there was partnership in business between the parties, that the partnership business was being carried on in the disputed shop, that the partnership business came to an end in the year 1974 and that thereafter the respondent only was in possession.
13. It will be noticed that the appellant did not mention in the complaint since when there was partnership between the parties. He has also not mentioned the business which the parties were carrying on in partnership. There is not a single document to show that there was partnership between the parties. There is also no documentary evidence to show that the partnership business came to an end in the year 1974. The appellant simply relied on the oral evidence given by him and his two witnesses. Chhida Lai appellant indicated in cross-examination that the partnership business started in the year 1953-54. In chief examination he stated that the shop belonged to him, that he had provided finance and that Bal Swarup respondent used to work at the shop. In chief-examination he has not indicated the nature of the partnership business.
14. Magtu Singh (P.W. 2) stated that the appellant was doing business of gold and silver, that he was the owner of the shop, that previously the parties were partners and that the partnership came to sin end about 3 years ago. In cross-examination he stated that he was not able to say for how many years partnership existed between the parties. Then he said that the partnership business lasted for about 20 years. In this way he corroborated the statement of the appellant, Magtu Singh further stated that in the shop in question both the brothers were dealing in gold and silver and that there is only one shop in which both the brothers were sitting.
15. Gajjan Singh (P.W. 3) stated that the partnership between the parties lasted for 10-12 years and that the partnership was in the business of gold and Bilver, and that both the brothers used to sit in one and the same shop. His statement clearly belies the testimony of Chhidda Lai and Magtu Singh to the effect that the partnership lasted for 20 years. As there is no documentary evidence to indicate the partnership and the oral evidence is discrepant, it cannot be held that there was partnership in business between the parties. The Additional Sessions Judge has rightly concluded so.
16. In his judgment the Magistrate has referred to 9 papers filed by the appellant The first thres papers are copy of notice dated 5-7-77, its postal receipt and its acknowledgment receipt. These three papers are proved. The fourth paper is an affidavit filed by the appellant before the Executive Engineer, Electric Supply Department. The fifth paper is a letter dated 1-7-1976 from Executive Engineer (Hydel) to the Assistant Engineer directing him not to give connection to the respondent in the shop in dispute. The sixth paper is a copy of a letter from Chairman, Municipal Board, Dadri dated 13-7-1976 to the S.D.O. (Hydel) showing that the respondent was in illegal possession of the shop and not entitled to electric connection. The seventh paper is a copy of reply sent by the respondent through a lawyer, Sri P. S. Gaur, to the Executive Engineer (Hydel). The eighth is a notice dated 28-7-1977 by Sri P. S. Gaur to the Executive Engineer (Hydel). The ninth paper is copy of an affidavit dated 22-3-1981 filed by the respondent before the Assistant Sales Tax Officer, Sikandrabad saying that the business in the shop was a joint one. These 6 papers were not at all proved on the record. Therefore, they could not have been taken into consideration. It will next be seen that papers Nos. 7 and 8 are not reply sent by Sri P. S, Gaur, counsel of the respondent and notice sent by Sri P. S. Gaur on behalf of the respondent. These two documents are in fact letters of the Executive Engineer (Hydel) to the respondent's counsel Sri Parmatma Sharan Gaur. It will also be noticed that the affidavit dated 22-3-1961 filed by the respondent before the Assistant Sales Tax Officer shows that tjre was partnership in the Sarrafa business amongst Bal Swarup respondent, his father Hari Singh and his nephew Krishna Autar. This affidavit does not show that there was partnership between the respondent and the appellant. It is thus apparent that the appellant wrongly stated that the parties were partners from the year 1953-54.
17. The position that follows is that the appellant wrongly alleged in his complaint that the parties were partners and that the partnership came to an end in the year 1974. This conclusion coupled with the statements of the appellant and his witness Magtu Singh goes to indicate that the respondent is in actual possession of the shop from the times of the parties father.
18. It is undisputed that in the year 1977 the appellant was owner of the shop. There is nothing to show since when the appellant became the owner of the shop. It appears that originally the parties' father was the owner of the shop and later on the appellant became the owner of the shop perhaps by means of a private partition in the family.
19. The other point which requires determination is whether the respondent is the tenant'of the shop from the year 1959, The respondent has not filed a single document to show that he was tenant of the shop. The respondent examined Chandrabhan Singh, who is a common relation of the parties. He simply stated that the respondent was sitting on the shop for more than 20 years, that he was dealing in gold and silver, that the appellant previously had cloth shop, that for the last 2 years he was also dealing in gold and silver, that the shop is one having two doors and that there is a partition of tin between the shop of the appellant and that of the respondent. In cross-examination he stated that Chhidda Lai appellant is the owner of the shop. Then he stated that he did not know if Chhidda Lai and Bal Swarup ever worked in partnership. Worthy of notice is that Chandrabhan Singh has not stated that the respondent was tenant of the shop.
20. The respondent no doubt gave an application under Section 30 of the Act before the Munsif on 20-12-1974. In this application he mentioned that he was tenant at the rate of Rs. 20 per month and that rent for 8 months from 1-4-1974 to 31-11-1974 amounting to Rs. 160 was due. The appellant was arrayed as an opposite party. Notice was sent to the appellant. The appellant did not put in appearance before the learned Munsif. The learned Munsif allowed the application and permitted the respondent to deposit rent in court.
21. Section 30 of the Act provides a speedy remedy to a person who claims to be a tenant. In case the landlord refused to accept rent from him, he can move an application under Section 30 for depositing rent alleged to be due. The Munsif is required to give notice to the landlord. Then the Munsif can permit the applicant to deposit rent in court. The consequence of this deposit is that the amount deposited would be deemed to have been paid to the landlord as provided in Sub-section (6). But this section does not help the person who is really not a tenant. In this case it has been indicated above that the appellant has not proved by any evidence that he was tenant of the shop from the year 1959. Therefore, the respondent cannot get any advantage by depositing rent under Section 30 of the Act. It is true that the appellant did not put in appearance before the Munsif but this does not mean that really there was a relationship of land-Lord and tenant between the parties. In a suit for ejectment or-in a proceeding under Section 448, I.P.C., the landlord can show that in fact there was no relationship of landlord and tenant between the parties. The proceeding under Section 30 of the Act is simply a speedy proceeding and the court cannot go into the question whether there existed relationship of landlord and tenant between the parties.
22. The position that follows from the above is that the respondent cannot be considered a tenant of the appellant in the shop.
23. For what has been discussed above, it is apparent that the parties failed to prove their respective cases. It is, however, evident that the respondent is in actual possession/occupation of the shop from the times of his father.
24. learned Counsel for the appellant contended that as on the date of giving notice and also on the date of the filing of the complaint, the appellant was un-disputedly owner of the shop, the respondent would be deemed to be in unauthorised use of the shop if he did not vacate it after the receipt of the appellant's notice and that the respondent would be guilty of the offence of criminal trespass even though the appellant failed to prove his case of partnership between the parties. His contention in substance is that if an owner gives notice under Section 441 to an occupant of his property, whatever his status may be, and the occupant does not vacate then he is liable to be convicted for the offence of criminal trespass. The amendment of Section 441 made in the year 1961, as its language indicates, is retrospective in the sense that it applies to those persons also who had come in occupation/possession prior to the coming into force of the amending Act. In my opinion, the contention of the appellant's counsel is not correct. For instance, the occupant is a tenant. He can be ejected in the manner provided by law for the ejectment of tenants. Such an occupant cannot be held guilty of criminal trespess simply because he failed to vacate on receipt of a notice under Section 441. Take the instance of a licencee who can be evicted in accordance with the terms of the licence. He too cannot be held guilty of the offence of criminal trespass if he did not vacate on getting notice under Section 441. Moreover, the essence of the of-, fence of criminal trespass under para 2; of Section 441 is the specified intention on the part of the occupant, The intention should be 'of taking unauthorised possession or making unauthorised use of the property,' If a person having such an intention does not leave the property on receiving notice of the person who would be deemed to be in possession (i.e. constructive possession) he would be taken to have committed criminal trespass.
25. In the present case the respondent is in actual possession from the times of the parties' father. The appellant appears to have become owner of the shop, on account of a private partition. Terms and conditions of the private partition are not known. In these circumstances, it cannot be held that the respondent was in possession of the shop with the intention of taking unauthorised possession or making unauthorised use of the shop. The respondent has been dealing in gold and silver since the beginning of his possession. It means that the respondent did not have the mens rea which is the main requisite of Part I of paragraph 2 of Section 441. In this aspect of the matter, as the appellant is undisputedly the owner of the shop, the remedy of the appellant lies in civil court and that the respondent cannot be said to have committed the offence of criminal trespass, notwithstanding the fact that the respondent did not vacate the shop after service of the notice given toy the appellant.
26. The learned Counsel for the respondent referred to the case of State v. Raja Ram 1976 AU LJ 559 : 1976 Cri LJ 1222. In this case two principles were laid down: (1) Para 1 of Section 441, I.P.C. requires actual physical possession over the property of the complainant and (2) Para 2 of Section 441', I.P.C. did not require actual physical possession of the complainant. If the complainant was in constructive possession of the property, he could maintain an action under the second paragraph.
27. The above two principles have no bearing on the merits of the present case.
28. In the case of State v. Raja Ram 1976 Cri LJ 1222 (All), Raja Ram was prosecuted for having constructed a house within the limits of national highway No. 2. Defence of Raja Ram was that he had made constructions with the permission of the Sabhapati on Gram Sabha land. It was found that the construction of Raja Ram was within the limits of the public highway. But it was held that as Raja Ram made construction bona fide believing that the land belonged to the Gram Sabha, Raja Ram could not be punished for the offence of criminal trespass and that the case was of civil nature.
29. In the present case also as the respondent is in possession of the shop from the times of his father and as there was no partnership between the parties as alleged by the appellant, the remedy of the appellant to eject the respondent is by filing a suit in the competent civil court and that the respondent cannot be punished under Section 448, I.P.C.
30. For what has been found above, there is no merit in this appeal which is dismissed.