JHUMAR LAL Vs. HANSRAJ

JUDGEMENT

(1.) This is defendant's second appeal in a case for malicious prosecution and it arises out of the following circumstances:

(2.) Shri Vallabh D. W. 8 sold a portion of his ancestral house to one Kundanmal on 1st April, 1961, and it is alleged that the possession of that house was handed over by the vendor to the vendee. According to Kundanmal he handed over the keys of the Kotha to his father Jhumarmal. The house originally belonged to Tarachand who had left after his death two sons namely, Shri Vallabh and Kanhaiyalal, Kanhaiyalal was minor at the time of this sale and Tarachand's wife Mst. Ramkanwari was his guardian. On 14th April, 1961, Mst. Ramkanwari and her minor son Kanhaiyalal who used to live separate from Shrivallabh sold the same property to Hansraj and Ghewarchand and according to these vendors possession of the property was handed over to Hansraj and Ghewarchand.

(3.) A report was lodged at the police station Bhikamkor by Jhumarlal on 25th April, 1961, that on the night intervening 22nd and 23rd April, 1961 the room which was locked by him was broken open by some persons and articles put by the plaintiffs were removed therefrom. The police found the complaint incorrect, After about six months i.e., on 9th October, 1961, defendant Jhumarlal filed a complaint in the court of Magistrate first class No. 1, Jodhpur District, against Hansraj and Ghewarchand under Sections 457 and 380, Indian Penal Code but it appears that the complaint was registered only under Section 379, Indian Penal Code. After their acquittal, the plaintiff brought a suit for damages for malicious prosecution and claimed Rs. 5,000/- as damages from the defendant Jhumarlal. The claim of the plaintiff was resisted by the defendant on the ground that the complaint was lodged without any malice and with reasonable and probable cause. Issues were framed and evidence was led by both the parties. The learned trial court gave a very elaborate judgment after carefully scrutinising the evidence led by the parties and held that after the sale effected by Mst. Ramkanwari and Kanhaiyalal in favour of the plaintiffs Hansraj and Ghewarchand, possession of the property was handed over to the plaintiffs and, therefore, the complaint which was lodged after a pretty long time of the alleged incident, was without any reasonable and probable cause and that the element of malice was present. The learned trial court decreed the suit for Rs. 2,625/- against the defendant.