K RANGARAJAN Vs. R PONNUSAMY GRAMANI

JUDGEMENT

(1.) THE petitioner Rangarajan is the complainant. He filed an application on 5-6-1970 praying for restoration of the property Under Section 522, Criminal P. C. , in the wake of the judgment delivered in his favour on 14-5-1970 by the learned III Presidency Magistrate.

(2.) HIS evidence is that he filed an eviction petition and it was decreed. In execution, possession was physically delivered to the complainant (P. W. 3) after physically evicting the accused respondent (Ponnusami Gramani) by the court bailiff, P. W. 1. Ex. P. I is the delivery warrant. 3 days later on 5-12- 1967 the accused put up a hut on the edge of the land. P. W. 2 gave him the information. On 7-12-1967 the complainant went there with his father. The accused threatened to beat him. Therefore, P. W. 3 complained to the police. It is the case of the accused that he was not evicted at all and that he has always been in possession for the last 20 years. His case was rejected by the learned trial Magistrate and the testimony of P. W. 3 was accepted in convicting the accused-respondent for an offence Under Section 447, IPC P. W. 3 in his evidence stated that on 6-12-1967 the accused trespassed into his land, constructed a hut out of P. W. 3's material by committing theft of his material and that a complaint had already been given by him against the accused. The evidence of P. W. 3 that the accused threatened to beat him has not been challenged. In view of my affirming the order of the learned trial Magistrate in regard to the offence committed by the accused-respondent, I consider that, in the interest of justice, an order Under Section 522, Criminal P. C. has got to be made in favour of the complainant-petitioner. An offence Under Section 447 is really attended by criminal force or show of force. Undoubtedly, it is by such a force or even show of force P. W. 3 has been dispossessed of his property. I consider it fit that, in the interest of justice, P. W. 3, the person dispossessed ought to be restored to the possession of the same. this Court has the power to pass such an order within the ambit of Section 522 (1) under the powers vested Under Section 522 (3), Criminal P. C.

(3.) THE learned Counsel for the accused-respondent argued that on the authority of the ruling in Mohamed Ali v. Ramadoss 1966 M. W. N. Crl. 56, there is no justification for passing an order Under Section 522, Criminal P. C. In my view the very headnote of that decision and the facts and circumstances of the case would make it very clear that the petitioner remained in the bungalow as a tenant and such a possession was accepted by my brother, Sadasivam, J. to be true. In the light of such a finding an order Under Section 522 is improper.