Jasuram Marwari and Others vs King Emperor

Macpherson, J.—This is an application for revision of the conviction of the four petitioners by the Deputy Magistrate of Monghyr, of an offence u/s 143 of the Indian Penal Code and the sentence of fine of Rs. 60/- each, which conviction and sentence have been upheld on appeal by the Sessions Judge of Monghyr.

The facts alleged were that the complainant Jawahir Halwai took settlement from the landlord of a piece of waste land in Jamalpur bazar in January, 1922, obtained permission from the municipality in May to erect a fuel gola upon it, and sold fuel there for several months until the 11th October, when a mob of some twenty persons including the petitioners came the to plot and cleared it of the fencing and all its contents. The trial Court found that the complainant was in actual peaceful possession of the disputed land, and that although the petitioners and others have right and title to the same, they were not in actual physical possession but without justification came to the land to asserts possession by force. In appeal the learned Sessions Judge found that there could be no doubt that the complainant actually "managed to obtain possession of the land" in dispute in January, 1922, and was in possession thereof on the date of occurrence; even if the petitioner Jasuram had title it was not clear that he had actually obtained possession at any time of the small plot of party land in dispute and it was certainly the complainant who was in possession at the date of occurrence. He found also that �he occurrence took place and the complainant''s gola had been demolished as alleged, and that the four petitioners were members of the unlawful assembly, the common object of which was to take possession by criminal force or show thereof of the land on which complainant had his gola.

It is contended that upon the facts found the case does not come within the definition of unlawful assembly inasmuch as the land being the property of the petitioner Jasuram, the complainant was a trespasser whom Jasuram was entitled to eject from the land. I am unable to accede to this contention. In the first place it is not quite clear on the findings of the learned Sessions Judge that this small part of waste land was within the area purchased by Jasuram. But even if it was, the finding is that he certainly had not been in possession for many months while the complainant had been and had carried on his gola on the land. Possibly Jasuram may have a right to eject complainant from the plot by civil process. But he is not within his rights when he takes a mob of men and forcibly clears the person in possession of the land in respect of which he has only title without possession. The right of private defence of property does not avail him; Section 99 of the Penal Code expressly sets out that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities who in this instance were close by. That right does not cover a case of taking or retaking possession by means of criminal force or show of criminal force as in the present instance.

In my opinion the learned Sessions Judge was entitled upon the record before him to come to the conclusion of fact at which he has arrived, he has correctly applied the law to the facts and there is no reason to interfere with his decision.

The application is rejected.