SHIV DHARI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellants were convicted for offence under Section 198-A (2 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 and each of them was sentenced to suffer 6 months' rigorous imprisonment, which was reduced to four months' rigorous imprisonment by the court of Session, Mirzapur, and to pay a fine of Rs. 500. 00, in default to undergo three months' rigorous imprisonment. The High court having confirmed their conviction and sentence, this court is called upon to examine the correctness thereof.

(2.) The undisputed facts are that Utrahey Public Witness was allotted the land in dispute under the provisions of the Act. He was ousted from possession by the appellants. The appellants were found on inspection by the Lekhpal to have assumed possession. An FIR was lodged by the Lekhpal. On the establishment of these facts, even the appellants' claim that their conviction cannot sustain, since the terms of Section 198-A, are intended to apply to the person who after being evicted under this section, reoccupies the land or any part thereof without lawful authority. Such person alone attracts punishment and not any other person who may trespass and oust the allottee. In other words, it is urged that it has first to be established that before Utrahey was put in possession, were the appellants who were in possession and had suffered eviction to make way for Utrahey whereafter on resumption of possession by them by ousting Utrahey would the provision get attracted. It is urged that the first ingredient of the section is not established inasmuch as there is no finding that the appellants were evicted while putting Utrahey in possession of the land in dispute. The trial Judge as also the High court have tied up this matter by cashing on the statement of the appellants to the effect that they had been in possession of the land in dispute since long from which it was inferred that it were the appellants who were evicted and Utrahey put in possession.

(3.) It is also not disputed that under Ss. (5 of Section 198-A of the said Act, the court seisin of the matter is further required to pass orders regarding possession. It mandates that where in any proceeding under Sub- section (2, the accused is acquitted or discharged and the court is satisfied that the person so acquitted or discharged is entitled to be put hack in possessionover such land, the court shall, on the application of such a person, direct that delivery of possession be made to him. We have specifically asked the. learned counsel for the appellants as to what would be his position in case we chose to acquit the appellants. Learned counsel has plainly stated that the appellants have no cause to make any application for delivery of the possession of the land in dispute to them and in that event nor would they even stake any claim to possession of the land in dispute. Keeping that in view, we would preserve the possession of the complainant to whom the land now stands reverted by an interim order of the court under Ss. (3 of Section 198-A. On concession of learned counsel for the appellants we make the interim order passed under Ss. (3 in favour of complainant absolute and make way for acquitting the appellants on the sole ground that there is no positive finding that it were the appellants who were evicted and Utrahey put in possession over the land in dispute. Solely on that premise, we order their acquittal. The inference drawn by the courts below that it were the appellants who were evicted to make way for Utrahey has no basis. In any case, that inference is doubtful.