ULAHANNAN SOURIAR Vs. OUSEPH ANNA

JUDGEMENT

(1.) This petition is filed by the complainant in calendar case No. 121 of 1121 in the court of the Stationary First Class Magistrate of Moovattupuzha. He had charged the first accused who is the sole respondent here, with having committed criminal trespass. The property in question is garden land. The Magistrate found the first accused guilty and sentenced her to pay a fine of Rs. 50 and directed further that in default of payment of fine she should undergo rigorous imprisonment for four months. She appealed to the Sessions Court of Parur and the appeal was heard by the Additional Sessions Judge. The case of the complainant was that there were proceedings in the court of the District Munsiff of Moovattupuzha for delivery of possession of the plot of land which form the subject matter of this criminal case. His case was that the first accused was the person in possession of the property at the time he started execution proceedings for obtaining his delivery of possession from her. According to him, actual delivery of possession was obtained by him by taking out a process of court which was executed by an Amin of the District Munsiff's Court who was examined as PW 8. On the basis of the decisions reported in 7 TLJ 330 and 18 TLJ 1287 it was contended in the lower appellate court as it is contended before us, that once it is established that there is a kychit like Ext. A in the present case which indicates that delivery of possession was given to the complainant a person in the position of the first accused must necessarily be held liable for criminal trespass if she ever continues in possession after the date of such a kychit or if she enters into possession after the date of the kychit. The lower appellate court has applied its mind to this aspect of the case. But the learned Judge has taken the view that the presumption that things have been done in the proper manner in a civil court may be rebutted by evidence to the contrary which can be accepted without hesitation. In the present case the mere production of the Kychit Ext. A will not, according to the lower appellate court, be conclusive evidence that possession was actually delivered to the complainant. It would still be open to the accused to say that this document is a bogus one which does not correctly record what happened. This view of the learned Sessions Judge seems to us to be correct. He comments upon the fact that Ext. A, the delivery kychit, was filed in the Court of the District Munsiff on 11.8.1119, on the eve of the closing of the Munsiff's Court for the midsummer recess. On the date the court re-opened the first accused filed the original of Ext. II which was a petition supported by an affidavit, Ext. II (a), in which she denied knowledge of the proceedings in execution evidenced by Ext. A, the report of the Amin and prayed that the proceedings may be reopened and set aside. In that affidavit, she also stated that she continued to be in undisturbed possession of the property alleged to have been actually delivered over to PW 1. This petition was pending enquiry in the civil court. While it was pending, the complainant started the prosecution against the first accused without waiting for the civil matter to be disposed of. Curiously enough, the civil matter arising from the petition of the first accused was kept pending and the criminal case was proceeded with and the Magistrate convicted the accused. The proper procedure to be adopted in similar circumstances would have been to stay the criminal case until the civil dispute was finally settled by an order made by the District Munsiff before whom the case was pending. On the evidence recorded by the Magistrate who heard the case the learned Sessions Judge has recorded the following finding:-

(2.) We are not prepared to say that the lower appellate court was debarred from considering this aspect of the case. This was the most fundamental thing to be considered when dealing with the criminal prosecution. The mere fact that a document was produced which professed to be the kychit filed by an Amin in a District Munsiff's Court cannot be acted upon, if the bona fides of the proceedings happens to be challenged as in the present case. The court below was justified in considering whether the alleged delivery of possession of the property was bogus or not. Although there is a presumption that proceedings in a court are properly conducted, when there is strong evidence to the contrary. It will not prevent a court like the lower appellate court from applying its mind to what actually transpired in the Civil Court and arriving at its conclusion as to whether there was an actual delivery of possession or whether there was only a bogus report. The learned Sessions Judge has found that the report is a bogus one. There is nothing on the record to show that the report was acted upon by the learned District Munsiff in whose court it was filed. On the other hand, the petition filed by the first accused questioning the genuineness of this report, Ext. A is pending in the Munsiff's Court. In the circumstances we are not prepared to say that the view taken by the lower appellate court that the first accused cannot be held guilty of the offence mentioned in the charge is erroneous. The criminal revision petition must accordingly be dismissed.