PHUL KUMARI Vs. SHEODAHIN TIWARY

JUDGEMENT

(1.) The complainant Phul Ku-mari has filed this appeal with special leave under Section 417(3), Code of Criminal Procedure. The two respondents, who are husband and wife, were convicted by the trying Magis trate under Sections 323 and 448, Indian Penal Code, and sentenced to pay a fine of Rs. 600/-each, but on appeal the conviction and sentence were set aside by the learned Additional Sessions Judge. The parties are residents of the same village, Ram Sahar, within Barbara Police station, in the district of Shahabad. The dispute centres round a house standing on plot No. 9th of khata No. 333.

(2.) Plot No. 916 originally belonged to respondent Sheodahin Tiwary who made a gift of his properties to his wife, respondent Jugna Kuer. under a registered deed dated the 24th March 1949. The deed of gift included 0.94 acre out of plot No. 1522 of khata No. 604 and 0.03 acre out of the disputed plot, which bears plot No. 916. Plot No. 1522 measured 1.02 acres and plot No. 916 measured 0.25 acre. Before making the gift in favour of his wife, respondent Sheodahin had created a usufructuary mortgage for Rs. 1800/- in favour of one Dulhin Prasad Kuer. After the gift in her favour, respondent Jugna Kuer executed a registered sale deed dated the 23rd July, 1951 for Rs. 3,000/- in favour of Radhika Devi and Bageshwari Devi, who are the Bhaujais of the complainant Under this deed, respondent Jugna Kuer purported to convey the entire 0.25 acre in plot No. 916 to her vendees. A sum of Rs. 1200/- out of the consideration for the sale deed was received by Jugna Kuer in cash and the balance was left with the vendees for redemption of the usufructuary mortgage which stood in favour of Dulhin Prasad Kuer in respect of plot No. 1522. But the vendees did not redeem the mortgage and, therefore, Jugna Kuer remained out of possession over plot No. 1522. Accordingly, she instituted a money quit against her vendees for recovery of damages due to breach of contract alleging the measure of the damages to be the value of the produce of her interest in plot No. 1522 for the years 1959-60. In that suit a modified decree was granted to her by the Courts below and the vendees came up to this Court in Second Appeal No. 508 of 1957. Kanhaiya Siugh, J. who heard the appeal dismissed the suit for damages by his judgment dated the 3rd March 1960, holding that the sale deed executed by Jugna Kuer was invalid inasmuch as she purported to sell 0.25 acres in plot No. 916, although her interest in that plot was confined to 0.03 acre only.

(3.) While the second appeal was pending in this court, Jugna Kuer instituted another suit against her vendees for recovery of Rs. 1800/-which was the unpaid balance of the consideration money for the sale deed dated the 23rd July 1951, but that suit was also dismissed by the trial court on the 23rd December 1959. It is in this background that present occurrence is alleged to have taken place on the 25th July 1960, about four months after the decision of this Court in Second Appeal No. 508 of 1957. (3) The case put forward by the complainant is that she was living alone in the house standing on plot No. 916 and her Bhaujais with their respective families were living in Calcutta and Monghyi. In the morning of the 25th July 1960, both the respondents entered into the house, assaulted her, drove her out of the house and occupied it, also retaining therein her belongings, such as ornaments and clothes worth approximately Rs. 5,000/ . She filed the complain on the following day.