Jang Bahadur Singh and Others vs King-Emperor

Jwala Prasad, J.—This is an application to set aside the conviction and the sentence passed upon the petitioners u/s 426 of the I.P.C. The subject-matter of the accusation against the petitioners is said to be that the petitioners cut away about 10 maunds of unripe paddy crop from a field measuring about 5 big has in village Gurturi. The occurrence took place on the 3rd November 1924 and the paddy cut away was sown in Asarh 1331 corresponding to June or July 1924. Cutting of the paddy is not denied, but the petitioners urge that they had right to cut the crop and, therefore, they have committed no offence in doing so. The petitioners are servants of Rameswar Bhagat and the complainant is a servant of the Raja of Ranka. Between Rameswar Bhagat and the Raja of Ranka there has been litigation over, amongst others, the village Gurturi where the land in question in this case is situate. Rameswar Bhagat brought an action in ejectment against the Raja of Ranka, which was for recovery of possession with mesne profits of village Gurturi along with some other villages. The suit was dismissed by the Subordinate Judge, but was decreed by this Court, the judgment whereof is reported in 1918 P.H.C.C. 156: Rameswar Bhagat v. Girwar Prasad Sinkh. This Court set aside the decision of the Subordinate Judge and gave a decree to the plaintiff Rameswar Bhagat in 1917 for possession with mesne profits from the date of dispossession to the date of delivery of possession. It was confirmed by their Lordships of the Judicial Committee in appeal by the Raja in April 1922. The decree of the Privy Council was put in execution by Rameswar Bhagat and the delivery of possession was effected on the 25th September 1923. On the 4th October 1923, the Raja put in an objection to the delivery of possession upon the main ground that the proceedings in execution leading up to the delivery of possession were null and void and inoperative inasmuch as the execution was proceeded with, without notice having been served upon the judgment-debtor under Order 21, Rule 22 of the Code of Civil Procedure. This objection prevailed and the delivery of possession was set aside on the 20th February 1924. At that time there was no crop on the land and obviously the crop which was on the land when the delivery of possession was effected was harvested and the decree-holder admitted that the crop was removed by the Raja inasmuch as he had grown it previous to the delivery of possession. The incident is only important inasmuch as the Courts below have held, and perhaps rightly, that the Raja would not have allowed the decree-holder to grow the paddy crop thereafter in the following Asarh i.e., June or July 1924, the subject-matter of the present case u/s 426. The decree-holder Rameswar Bhagat put the decree again into execution on the 27th November 1924, and got the notice served on the 8th June. The judgment-debtor filed an objection on the 8th July 1925, which is still pending. It is obvious from the above account of the two execution proceedings, as well as from the various orders passed in the last execution case, that the Raja is strenuously opposing the delivery of possession of the property to the decree-holder Rameswar Bhagat and certainly he would not have allowed him to grow the crop in question. So far the finding of the Court below is correct. The question then is whether Rameswar Bhagat committed any mischief in removing the crop in question which was grown by the judgment-debtor, the Raja of Ranka. The Magistrate convicted the accused upon the following finding:

I find that there is overwhelming evidence to show that the paddy belonged to the Raja of Ranka and the three accused forcibly cut it when it was not sufficiently ripe and the prosecution has fully proved the case against all the three accused.

This finding has been upheld by the lower appellate Court and certainly the accused persons would have been guilty if the crop in question belonged to the Raja of Ranka. It was no doubt grown by him, but it did not belong to him. The decree of the High Court, which was confirmed by the Privy Council, adjudicated upon the right and title of the decree-holder in the land in Gurturi. It has been declared that the lands belonged to Rameswar Bhagat and that the Raja of Ranka is a mere trespasser. The decrees have further held that Rameswar Bhagat is entitled to the mesne profits of the property which is the lands in Gurturi. Clause 12 of Section 2 gives the definition of "mesne profits" thus:

Mesne profits of property means those profits which the person in wrongful possession of such property actually received or might, with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.

The Raja of Ranka being a trespasser has no right either to the lands or to the profits thereof, namely, the crops which he might raise thereon. If he raised the crops the benefit of it would go to the decree-holder. Therefore the crop raised by the Raja in law does not belong to him but belongs to the decree-holder Rameswar Bhagat.

It is concluded that no mischief is committed by a person with respect to damage done to his own property. u/s 425 mischief must be done to the property belonging to another person, but where a person''s right is declared by a civil Court he commits no mischief by damaging the property. Here no loss can be can caused to the Raja of Ranka; for he can always ask the Court in which the execution is pending to take into account the paddy which has been removed by the petitioners. Jackson, J. in the case of Empress v. Rajcoomar Singh (1877) 3 Cal 573 observed as follows;

Now it is clear from the decision of the civil Court, which was then in force, that Shama Churn Lahiri was not at that time legally entitled to have those bamboos put together in that place in the form of a naubutkhana, and consequently there was no causing of wrongful loss in the act done by the accused persons.

The principle laid down in the case of Parmeswar Singh v. Emperor (1911) 38 Cal 180 may be applied to the case in hand. The authorities upon the question were discussed by me in the case of Musammat Chandmani Vs. Kartick Singh, . I held there:

A rightful owner is entitled to physically turn out a trespasser or one trying to infringe upon his right. A person exercising this right should, however, not use more force than is reasonable to defend his possession from a trespasser.

In the present case the petitioners are not alleged to have used any force. They went quietly and cut away the crop in question. It is not incumbent upon the decree-holder to obtain possession of the property through Court. If he can turn out the judgment-debtor peacefully without using unnecessary force he will save the trouble of going to the executing Court. It is only when a decree-holder finds that it is not possible for him without breach of the peace to obtain possession of the property or properties decreed in his favour in the civil Court that he resorts to execution proceedings.

The dispute at best between the parties is of civil nature wherein the appropriation of rent by the judgment-debtor from the tenants as well as the appropriation of profits from the bakasht lands will all be taken into account in determining the amount of mesne profits that the judgment-debtor is liable to pay him for the period during which he was in wrongful possession of the property. It is wrong in principle to punish a person who obtains a decree from a civil Court after contest for his trying to recover possession of the property without using force. The wrong is done by the judgment-debtor who still clings to the property in spite of the decree of the Courts against him and not the decree-holder who tries to recover possession of the property decreed to him without resorting to force.

The application is allowed. The rule is made absolute and the conviction and sentence of the petitioners are set aside. The fine, if realized, will be refunded.