KURIAN Vs. MANDAKUMARAN ALIAS KUNJUKUNJU

JUDGEMENT

(1.) This appeal has been preferred by the complainant against the order of acquittal of the seven accused in the case, passed by the District Magistrate at Kottayam. The case against them was, that they formed themselves into an unlawful assembly, trespassed on a plot of land which belonged to the complainant and P. W. 8, erected a hut on it at about 7 P. M. on the 1st February 1958, and committed offences under S.143, 148, 506 and 447 read with S.149, I. P. C. The findings on which the District Magistrate proceeded to acquit the accused are, that accused 1 and 2 had been previously occupying a hut on the same site as "Adakudi" tenants, that during the temporary absence of the first accused, the hut was destroyed at the instance of P. W. 8 not later than the 17th January, 1958, that on the return of the first accused, he erected the hut in question upon the same site, and that therefore, the accused had not been evicted from the property at any time, and had not committed any offence. The learned counsel, who appeared for the complainant in this court, contended, that even on these findings, the order of acquittal cannot be sustained for the reason, that once the hut, which was existing previously, was destroyed on behalf of the complainant, the accused lost possession of the site, and that they had no right to enter the property forcibly and erect a new hut in the place of the old.

(2.) This will depend on whether, by the destruction of the hut, the complainant or P. W. 8 came into possession of the site on which it stood, and whether the accused had acquiesced in their dispossession so as to disentitle them to retake possession in the exercise of their right of self defence. It is seen, that on the destruction of the hut when the first accused was away, the second accused preferred a complaint against two persons. A scene mahazar Ext. D-1, was prepared on the 20th January, 1958, by D. W. 1, the Sub-Inspector of Police, who saw the second accused squatting there, and mats, baskets, dishes and other house-hold articles lying scattered around. The case upon that complaint, ended in the acquittal of the accused therein. The learned counsel contended, that the accused, not having re-erected the hut for a number of days, must be deemed to have acquiesced in their dispossession. For one thing, by the mere act of destruction of the hut by setting fire to it, there was no dispossession of the occupants, and in any case, a dispossession in respect of the site. It was no doubt an act of incendiarism, but not necessarily of dispossession. Secondly, there was nothing to show, that the complainant subsequently reduced the site of the hut to his possession, by say, tilling the ground or by raising cultivation thereon. No positive act of possession was suggested and proved. Apparently after the first accused returned to the spot, he re-erected the hut. On these premises, the complainant has not proved possession of the site in question.

(3.) Assuming that the destruction of the hut amounted to a dispossession of the site, it is not the law that "a mere trespasser, can immediately and without acquiescence, give himself, what the law understands by possession, against the person whom he ejects, and drive him to produce his title deeds if he can, without delay, reinstate himself in his former possession", Browne v. Dawson, 12 A & E 624 followed in Emperor v. Bandhu Singh, AIR 1928 Patna 124. If the person ejected, allowed without any reasonable cause, a few days to elapse, such conduct may spell in the region of acquiescence and deprive him of his right of self defence which he had, if he had acted promptly. In the case cited, decided by the Patna High Court, the trespass was on the 10th July, and on the 26th, when a servant of the true owner went to the property to see if the trespasser was still there, he was threatened; the police charged the case against the trespasser on the 27th July. 'It was held, that the true owner was still in possession, that there was no acquiescence on his part, and that the continuance of possession by the trespasser was a recurring wrong and constituted a new entry every time that the true owner proceeded to the property to make a claim to it. In the present case, on the testimony of D.W.1, it is seen, that the second accused was squatting on the property for a few days, apparently in the assertion of her right of possession of the site, which alone was left, and preferred a complaint for the act of mischief; the complainant did not attempt to prove, that she thereafter left the property, or that she was removed from it. On the return of her husband, the first accused, the accused re-erected a hut on the same site. This, if anything, is not acquiescence in dispossession. On the findings recorded, and on the broad facts and circumstances, it is difficult to hold that there was a dispossession of the accused from the site, and that, in addition, there was acquiescence on the part of accused 1 and 2 in their dispossession, if any. The learned counsel could not urge any other contention in this appeal against acquittal, which is therefore dismissed.