GAJRAJ SINHA Vs. EMPEROR

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Shahjahanpur, recommending that the convictions and sentences of Gajraj Singh, Ram Singh, Mulaim Singh, Kjandehi, Pitam, Jhamman and Arjun, under Section 447, Penal Code, be set aside. A complaint was filed against the persons named above by Jwala, a peon of the Court of Wards, under Section 447 and Section 352, Penal Code, on 5 September 1934. The complaint was that the persons named above had been ejected on 30 June 1934, but they again came to the fields and cultivated them forcibly on 25 July 1934. He also complained that he had been assaulted by these persons. The trial Magistrate found that the persons named above, that is, Gajraj Singh and others had been duly ejected and they committed criminal trespass, and convicted them under Section 447. The learned Magistrate sentenced Gajraj Singh and Ram Singh to pay a fine of Rs. 40 each and the others to pay a fine of Rs. 10 each and ordered two months rigorous imprisonment in the case of Gajraj Singh and Ram Singh and one month's rigorous imprisonment in the case of others in default of payment of the fine. Against these convictions and sentences the persons named above, who will be referred to hereafter as applicants, filed an application in revision before the learned Sessions Judge.

(2.) There can be no doubt as regards the illegality of the sentence of imprisonment in case of default of payment of fine. As regards the legality of the convictions the learned Sessions Judge states that the trial Magistrate has not stated anywhere in his judgment that the applicants were aware of their ejectment and it had also not been proved that the Collector had sanctioned the prosecution. These are the two main grounds on which he recommended the setting aside of the convictions and the sentences.

(3.) For ejectment from land in execution of decree, it is not necessary that the applicants should have been made aware of their ejectment. Section 93, Agra Tenancy Act, provides that every decree or order for ejectment shall be enforced in accordance with the provisions of the Civil P. C., 1908, relating to the execution of decrees for delivery of immovable property. Rule 35, Order 21 relates to decrees for immovable property. It provides that where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and if necessary by removing any person bound by the decree who refuses to vacate the property. It is only in the case of a decree for joint possession, that a proclamation by beat of drum is required. So in accordance with the provisions of Clause (1), Rule 35, Order 21, Civil P.C., there was no need to give any information of actual ejectment or delivery of possession to the judgment-debtors, namely, the applicants. It cannot be said that the applicants were not aware of the ejectment proceedings. All that the applicants say is that they were not present at the time of the delivery of possession, but they do not say that they did not know of the proceedings of delivery of possession to the decree-holder.