RASH BEHARI CHATTERJEE Vs. FAGU SHAW

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the High Court at Calcutta allowing the criminal revision and acquitting the respondents of the charge under S. 447, I. P. C.

(2.) The only question which arises in the present appeal is whether on the facts and circumstances of the case the intent to annoy the appellant has been established. The law on the point is now settled by this Court in Mathuri v. State of Punjab, 1964-5 SCR 916 at p. 927 = (AIR 1964 SC 986 at p. 991). Das Gupta, J., speaking for the Court, after reviewing the authorities, stated the law thus :

(3.) The appellant gave the history of the dispute between himself and the respondents in his evidence. He stated that he and his three brothers filed title suit No. 404 of 1951 in the first Court of Munsiff at Serampur against the respondent Fagu Shaw praying for ejectment and khas possession of the land in dispute; the respondent Fagu shaw contested the suit; on May 23, 1954, a decree of ejectment was passed; against the judgment and decree the respondent Fagu Shaw preferred an appeal before the District Judge and the appeal wad dismissed; the respondent Fagu Shaw preferred a second appeal to the Calcutta High Court which was dismissed summarily; the appellant executed the decree and in September 1962 when the Nazir of Serampur Civil Court with process servers went to take delivery of possession of the case land the respondent resisted and refused to give possession; however on February 3, 1963, the Nazir with police help went to the spot for delivery of possession and the appellant obtained actual physical possession. The appellant further stated that the land was in their possession from February 3, 1963 upto February 17, 1963, when the present occurrence took place. It appears that the respondent trespassed on the land on the night of February 16, 1963, and on February 17, 1963, they were found making preparations for construction of bamboo structures on the same land and some bamboo pegs had already been posted.