Anna Chandy, J.
1. This appeal filed by the complain-ant against the acquittal of the accused in a case charge-sheeted by the police was allowed to be treated as a revision on the motion of the complainant.
2. The charge against the accused was that they formed themselves into an unlawful assembly with the common object of taking forcible possession of a property in the complainant's possession and put up a shed. Accused 2 and 7 pleaded that they were in possession of the property and had filed a suit for establishing their claims.- The other accused are their friends and associates.
3. The complainant got delivery of the property through Court as early as ' 1958 in execution of the decree in O. Section 369 of 1952. Subsequent to the delivery the defendants in that case trespassed into the buildings in the property and that necessitated another suit for demolishing the buildings at his cost and for a permanent injunction restraining the defendants from trespassing into the property. Pending suit the property was managed by a receiver appointed by the Court. That suit was also decreed and in pursuance of the decree the receiver surrendered possession of the property to the complainant and the buildings were destroyed at the complainant's cost. It was long after that on 6-7-1961 at night that the accused trespassed on the property and constructed the shed. Besides the complainant five witnesses were examined to prove the complainant's possesion and the construction of the shed by the accused. The Sub-Inspector of Police was also examined to prove the mahazar describing the recent construction of the shed on a basement which appeared to have been demolished about three years back.
4. Without considering the evidence adduced by the complainant in support of his possession or the criminal act complained of, the learned Magistrate acquitted the accused on the short ground.
that there is a civil dispute between P. W, 1 and the accused regarding the property in question and in such cases the jurisdiction of a criminal Court is ousted.
5. The dismissal of the complaint on the ground that the existence of a civil dispute ousts the jurisdiction of the criminal Court is not pro-per. This is a case in which the learned Magistrate missed the real issue before him and failed to exercise the jurisdiction vested in him which has resulted in failure of justice. The oral and documentary evidence produced by the complainant prima facie makes out his possession of the property as well as the construction of a new shed on the basement of one of the buildings that was actually demolished by the order of the Civil Court. Accused 2 and 7 denied the construction of a new shed and contended that they were in occupation of the old building. Absolutely no attempt was made by them to substantiate their plea of possession. They merely relied upon the filing of a civil suit to establish their claim. Accused 2 and 7 had sought to get themselves impleaded in O. Section 359 of 1959 and oppose the receiver application filed by the plaintiff in that suit and Ext. P-3 is the copy of the order where after an elaborate consideration of the evidence the application was dismissed on the ground that they had not made out even a prima facie case of having any manner of right or possession over the plaint property. When the occurrence in this case was reported to Pw. 1 he moved a petition before the civil court for taking action and the civil court directed him to move the criminal court as he was lawfully put in possession of the property in pursuance of the decree, terminating the receivership, and there was nothing more for the civil court to do in the matter. It was further directed that a copy of the order will be issued to the petitioner so that he may move the authorities concerned for the appropriate reliefs. Ext. P-4 is the copy of the order. It is in pursuance of this order that the complainant reported the matter to the police who chargesheeted the case after due investigation.
6. It is a case in which the complainant was put in physical possession of the property by the civil court and that court actually authorised him to move the criminal court for necessary action for further acts of trespass committed in the property. In such a case it was not open to the criminal court to refuse to adjudicate on the criminal acts complained of for the mere reason that a civil suit in respect of the property is pending. This court has time and again emphasised the fact that criminal courts ought to attach due weight to the record of delivery in deciding whether actual possession passed under the record. The learned
Magistrate seems to have been impressed by the circumstance that accused 2 and 7 were not parties to the civil case. In V. Madhava Kurup v. State, 1953 Ker LT 31: AIR 1953 Trav-Co 340 this court has held that:
Except in the case of symbolic delivery when a court effects a delivery to a decree-holder or to a court auction purchaser the court really putt such person in physical possession of the property delivered. Its effect is not merely to dispossess the Judgment-debtor but also other persons in possession who if aggrieved will have to seek re-delivery under the provisions enacted in O. XXI of C. P. C. or to bring a fresh suit to recover possession' The primary duty of a court in a criminal trial is to determine whether the offence complained or is made out by the evidence produced before it. The question of civil rights is only ancillary or incidental. The criminal court may not be competent to adjudicate on civil rights or title to the property, but to say that the pendency of a civil suit will automatically oust the jurisdiction of the criminal court is too broad a proposition of law to meet with approval. If that is so, in such cases any offender can hope to escape criminal liability by filing a civil case. Needless to say that each case has to be decided on the facts and circumstances of that particular case. In this case the civil court has finally put the complainant in physical possession of the property and referred him to the criminal court for appropriate action. The complainant was driven from pillar to post to get his rightful grievances redressed. The order of acquittal had necessarily to be vacated. It is vacated and the case is sent back for fresh disposal in the light of the evidence in the case.