Raj Pal Singh and Others vs State

P.K. Jain, J.—List has been revised. None appears for the parties. Perused the material on record and heard learned A.G.A.

The trial court convicted the revisionists for offence under Sections 147, 323, 324 and 325/149, I.P.C. and sentenced each of them to pay fine of Rs. 100 each u/s 147, I.P.C., Rs. 100 each u/s 323/149, I.P.C. and three months S.I. each u/s 325/149, I.P.C. and further to pay fine of Rs. 200 each and in default of payment of fine to undergo SI for one month. Criminal Appeal No. 87 of 1982 filed by the revisionists was partly allowed. The conviction of the revisionists on each court was upheld. However, the order of sentence was modified. Instead of sentencing them to imprisonment and payment of fine the appellate court directed them to furnish bonds for being of good behaviour and keeping peace for a period of one year. In this revision, the, revisionist Raj Pal Singh, Nanak, Lakhami, Shishpal, Mahendra and Omi have challenged their conviction and order of sentence passed by the court below.

The undisputed facts are that, the complainant party as well as accused party are co-sharer of land on a portion of which the accused were raising construction. The complainant objected to it whereupon Raj Pal Singh assaulted Prahlad with spear and Lakhami, Shishpal Mahendra and Omi assaulted Bhonde and Ved Pal with lathis causing them injuries. Defence case was that Raj Pal accused was raising construction over his plot of land. The complainant party assaulted Nanak, brother of the accused Raj Pal and Naresh. son of Raj Pal.

The incident of assault was admitted to both the parties and it was also admitted that both the sides received injuries. It is further admitted that accused party was raising construction to which complainant''s party objected. The sole question before the court below was as to which of the two parties was aggressor. The trial court held that the accused party failed to establish their ownership and possession and, therefore, they were aggressors. It appears from the record that certain documents were filed by the parties. The appellate court after referring to these documents came to the conclusion that suit for partition of the joint land was filed by the complainant, Bhonde but since the accused party in their written statement alleged that there was mutual agreement defining share of both the parties in the joint holding, the complainant got his suit dismissed in default. The appellate court upheld the contention that the mutual settlement between the parties was final and held that from the documentary evidence as well as from oral evidence it was established beyond doubt that the land was in Joint possession of the parties and hence neither of the parties was entitled to do an act which could have ousted other party because in that event both the parties were entitled to possession on every inch of Joint land. The appellate court, however, held that the right of private defence can be exercised subject to restriction contained in Section 99 of I.P.C. It was held by the appellate court that the Appellants have had enough time to have other remedy and no irreparable loss was being caused, hence they had no right to assault the complainant''s party. I think there is no error in the finding of the appellate court. Besides this under Clause (1) of Section 97, I.P.C., every person has a right to defend his property against any act which is an offence falling under the definition, of theft, robbery or criminal trespass or mischief or which is an attempt to commit theft, robbery or criminal trespass or mischief. Attempt to raise construction by co-sharer on a portion of undivided land would not amount to an offence of mischief or criminal trespass. Therefore, the accused party cannot have a right of private defence of property. There is no error in the finding arrived at by the appellate court.

The revision petition is devoid of merit and is, consequently, dismissed. The stay order dated 24.4.84 is vacated.