ANDANAYYA Vs. IRAYYA AND STATE OF MYSORE

JUDGEMENT

(1.) The petitioner has challenged the correctness of the order made by the learned Second Additional Sessions Judge, Bijapur under Section 522 of the Code of Criminal Procedure.

(2.) The properties bearing C.T.S. Nos. 2094 and 2097 are adjacent to each other. C.T.S. No. 2097 belongs to the 1st respondent-accused. C.T.S. No. 2097 belonged to one Hampavva who died in the year 1958. The petitioner and his adoptive mother Baslingavva claimed succession to the suit house after Hampavva's death. One Virupayya asserted his claim to the said house. The dispute was therefore, referred to a panchayat. I directed Virupayya to go to a Court of law and have his right established therein, and in the meanwhile the house was to be in possession of the Panchayat. But, Virupayya died and one Chandrashekarayya filed a suit for possession of the house against the present petitioner but the said suit was withdrawn on November 4, 1960. On November 15, 1960, Andanayya the petitioner got possession of the house from the Panchayat and continued in possession thereafter. On the 15th or so of January 1963, Andanayya went to the village of Tondihal and returned to Ilkal on January 31, 1963 and when he went to C.T.S. No. 2094 he found that the door of the kitchen of C.T.S. No. 2094 was blocked by a wall behind it. From the map it could be seen that there was a common wall between C.T.S. No. 2094 and 2097. The accused seems to have opened a door in the common wall and entered the kitchen portion of C.T.S. No. 2094. He blocked the door leading to kitchen by putting a wall behind it. The petitioner therefore, approached the accused immediately and asked the accused to remove the wall and the obstruction leading to the kitchen of C.T.S. No. 2094. He refused to do so and asked him to do what he likes. It was then that the petitioner laid a complaint on February 1, 1963 and after necessary investigation, a charge sheet was sent against the accused-respondent No.1., and his wife. The wife was acquitted by the learned Magistrate but Respondent No. 1(accused No. 1)was convicted of the offences under Ss. 488 and 341 of the Indian Penal Code. He further found that the accused remained in unlawful possession of the room with criminal force and therefore, he made an order under S. 522 of the Code of Criminal Procedure directing him to hand over possession of the Kitchen portion of the house. The accused preferred an appeal in the Court of the second Additional Sessions Judge, Bijapur. The learned Sessions Judge confirmed the conviction and sentence of the accused on both the counts but set aside the order mad by the learned Magistrate under S. 522 of the Code of Criminal Procedure. It is the legality of this part of the order that is being challenged in this revision petition by Shri. Andanayya Puranik for the petitioner. He contends that the learned Second Additional Sessions Judge, Bijapur erred in law in setting aside the order of the learned Magistrate made under S. 522 of the Code of criminal Procedure. According to him, he did not properly understand the scope and intent of S. 522 of the Code of Criminal Procedure and therefore he made the wrong order, which cannot in law be sustained.

(3.) On the other hand, Mr. Mallimath appearing for the respondent-accused contend that on the facts of this case, the order made by the learned Second Additional Sessions Judge is correct and does not require interference. The learned Government Pleader appearing for the State supports the contention of the petitioner. Therefore, the question that requires to be determined in this revision petition is whether the order made by the learned Second Additional Judge, Bijapur under S. 522 of the Code of Criminal Procedure is a correct order.