minal Appeal No 124 of 1965
Appeal by special leave from the judgment and order dated April 26 1965 of the Punjab High Court Circuit Bench at Delhi in Criminal Revision No 266 D of 1964
Bhawani Lal Kartar Singh Suri and E C Agrawala for P C Agrawala for the appellants
R N Sachthey for the respondent
457 The Judgment of the Court was delivered by Hegde J
Two questions that arise for decision in this appeal by special leave are  1 whether the appellants have established satisfactorily the right of private defence pleaded by them and 2 if they had that right have they exceeded the same  The prosecution case is as follows  Field No 1129477 measuring five bighas and thirteen biswas situated in Kilokri was an evacuee property and as such was under the management of the managing officer
That property was acquired by the Central Government under the Displaced Persons Act 1954
For the sake of convenience we shall refer to that property hereinafter as evacuee property The same was sold by public auction on January 2 1961 and purchased by PW 17 Ashwani Kumar Dutt for a sum of Rs 7600
Provisional delivery of that property was given to the vendee on October 10 1961
The sale certificate was issued on February 8 1962
The actual delivery was given on June 22 1962 as per the warrant issued by PW 5
Khushi Ram the managing officer
The said delivery was effected by PW It Sham Das Kanungo
On July 1 1962 when PW 17 and his father PW 19 R P Dutt went to the field with PW 16 Gopal Das PW 15 Nand Lal and one B N Acharya with a trac tor to level the land the appellants came armed with spears and lathis attacked the complainants  party and caused injuries to PWs 17 and 19 and the tractor driver B N Acharya
Though the appellants in their statement under section 342 Cr
PC denied having been present at the scene of occurrence or having caused injuries to any one the plea taken on their behalf at all stages was one of private defence
Their case is that their relation Jamuna DW 3 was the tenant in the land for over thirty years
His tenancy was never terminated
He had raised crops in the field in question
There was no delivery on June 22 1962
If there was any delivery as alleged by the prosecution the same was without the authority of law and as such was of no effect
Hence Jamuna continued to be in possession of the property even on July 1 1962
On the day prior to the occurrence PWs 17 and 19 tried to intimidate Jamuna to come to terms with them and to peacefully deliver possession of the property to them
But he put off the question of compromise by pleading that he was going out of station and the question of compromise could be considered after his return
With a view to forcibly assert their right to the property the complainant party came to the field in a body on July 1 1962 with a tractor
At that time PW 19 was armed with an unlicensed pistol
It is at this stage that the appellants who are near relations of Jamuna went to the field and asked the complainant party to clear out of the field
When they refused to do 458 so they pushed them and thereafter used minimum force to throw them out of the field
On the basis of the above facts it was urged on behalf of the appellants that they were not guilty of any offence
The courts below have accepted the prosecution version both as regards possession as well as to the manner in which the incident took place
The appellants have been convicted under sections 447 324 read with 149 and 148 IPC
We have now to see whether on the basis of the undisputed facts as well as the facts found by the High Court the defence can be said to have made out the plea of defence of property advanced on their behalf
It is true that appellants in their statement under section 342 Cr
PC had not taken the plea of private defence but necessary basis for that plea had been laid in the cross examination of the prosecution witnesses as well as by adducing defence evidence
It is well settled that even if an accused does not plead selfdefence it is open to the court to consider such a plea if the same arises from the material on record see In re Jogali Bhaigo Naiks and another1
The burden of establishing that plea is on the accused and that burden can be discharged by showing prepon derance of probabilities in favour of that plea on the basis of the material on record
The first question that arises for decision in this case is as to who was in possession of the field in dispute on the date of the occurrence ie on July 1 1962
For deciding that question it is necessary to find out as to who was in possession of the same prior to June 22 1962 the date on which that field was said to have been delivered to PW 17
On this question the prosecution is silent
DW 3 Jamuna in his evidence deposed that he had been in possession of that field as a tenant for over thirty years
His case was that he was formerly the tenant in respect of that field under some Muslim landlords and after their migration to Pakistan under the officer managing the evacuee property
This evidence of his was not challenged in cross examination
That evidence is supported by the prosecution exh
The courts below have also proceeded on the basis that Jamuna was in possession of the field till June 22 1962
Therefore we have to see whether there was any lawful delivery of that field on June 22 1962
At this stage it is necessary to recapitulate that the field in question had been sold by the managing officer on January 2 1961
Its provisional delivery was given on October 12 1961
The sale certificate was issued on 8 2 62 exh
Therefore the government had no interest in that field on or after the aforementioned sale
It is not the case of the prosecution that Jamuna s tenancy had been terminated by any of the authorities constituted under 1 AIR 1927 Mad
459 the to be hereinafter referred to as the Act
It may further be noted that the exh
PM The terms and conditions under which the auction of the field was held does not show that the government had undertaken to deliver physical possession of that field to the purchaser
From the facts stated above it is obvious that Jamuna continued to be the tenant in the land even after the sale in favour of PW 17
The prosecution case is that delivery of that field was given to PW 17 by PW 10 the kanungo on June 22 1962 as per the delivery warrant issued by PW 5 the managing officer
Even according to the prosecution version at the time of that delivery Jamuna was not present
There is also no evidence to show that Jamuna was aware of the alleged delivery
It is true that as a token of the delivery some ploughing was done at the time of the alleged delivery
At this stage it is also necessary to mention that at the time of the alleged delivery crops grown by Jamuna were there in a portion of the field
It was said that the kanungo who delivered the field valued the crops in question at Rs 60 and the same was deposited by PW 17 with PW 5 as per the orders of the latter for being paid over to Jamuna
We were not told under what authority those steps were taken
This takes us to the question whether the purported delivery is valid in law
Normally before a tenant can be evicted from his holding his tenancy must be terminated and the eviction should be done through a court of competent jurisdiction
No landlord has any right to throw out his tenant from his holding
The law on the subject was explained by this Court in Lallu Yeshwant Singh vs Rao Jagdish Singh and others1
Therefore it is clear that PW 17 who had become the owner of the land long before June 22 1962 could not have evicted Jamuna from the land in the manner alleged
The next question is whether PW 5 the managing officer was competent to evict Jamuna
We fail to see how he could have done it
He had no interest in the land in question on June 22 1962
The right title and interest of the government in the land had long been alienated
The managing officer had already given to the vendee such possession as he could have namely the landlord s possession
Thereafter it went out of the compensation pool and the managing officer had no power to deal with it unless otherwise expressly provided
Our attention has not been invited to any provision in the Act authorising the managing officer to deal with a property which had ceased to be an
evacuee property
Therefore we fail to see how PW 5 could have issued any warrant for the delivery of the field in question on June 22 1962
1  460 Before the courts below it was pleaded on behalf of the prosecution which plea commended itself to those courts that the delivery in question was effected under section 19 of the Act
Section 19 to the extent it is material for our present purpose reads thus I Notwithstanding anything contained in any contract or any other law for the time being in force but subject to any rules that may be made under this Act the managing officer or managing corporation may cancel any allotment or terminate any lease or amend the terms of any lease or allotment under which any evacuee property acquired under this Act is held or occupied by a person whether such allotment or lease was granted before or after the commencement of this Act
2 Where any person a has ceased to be entitled to the possession of any evacuee property by reason of any action taken under sub section 1 or b is otherwise in unauthorised possession of any evacuee property or any other immovable property forming part of the compensation pool he shall after he has been given a reasonable opportunity of showing cause against his eviction from such property surrender pos session of the property on demand being made in this behalf by the managing officer or managing corporation or by any other person duly authorised by such officer or corporation
3 If any person fails to surrender possession of any property on demand made under sub section 2 the managing officer or managing corporation may notwithstanding anything to the contrary contained in
any other law for the time being in force eject such person and take possession of such property and may for such purpose use or cause to he used such force as may be necessary
 The above provisions apply only to properties which are under the control of the managing officers or managing corporations
They do not apply to properties which have ceased to be evacuee properties
Further it is not the prosecution case that any action under sub sections 1 and 2 of section 19 had ever been taken against Jamuna
If that was so no action under sub section
3 of section 19 could have been taken
As a condition precedent for taking action under sub section
of section 19 it was necessary to take the steps prescribed by sub section
461 of section 19
It must be noted that the power conferred under sub section 3 is a special power conferred for a special purpose
Such a power has to be exercised strictly in accordance with the conditions prescribed
If it is not so exercised the exercise of the power would be vitiated
Having not taken any action under sub section 2 of section 19 the managing officer was incompetent to issue any warrant for delivery under sub section
3 of section 19 under which he is said to have acted
It was for the vendee to take the necessary steps under law for taking possession from Jamuna
Therefore it is obvious that the alleged delivery has no legal force
In the eye of the law it is non est
Hence Jamuna continued to be in possession of the field in question even after the so called delivery on Juno 22 1962
This aspect of the case was completely lost sight of by the courts below
It is seen from the evidence of DW 3 Jamuna which evidence was not even challenged in cross examination that PWs 17 and 19 were aware of the fact that the purported delivery on June 22 1962 was merely a paper delivery
In his chief examination DW 3 Jamuna deposed thus  A day prior to the occurrence R P Dutta and his son Ashwani Kumar had met me and had asked me to get the compromise effected
I told him that since I was proceeding out station in connection with some marriage any talk of compromise could take place after my return from there
Both R P Dutta and his son Ashwani Kumar had threatened me that in case I would not deliver possession of the land in question willingly they would get possession of the same by force under the pressure of the police
AR the accused are near relations of mine
 To repeat this evidence was not challenged in cross examination
From that evidence it is clear that at about the time of occurrence PWs 17 and 19 were conscious of the fact that Jamuna still continued to be in possession of the field
PWs 17 and 19 were aware of the fact that Jamuna was un willing to deliver possession of the field
This is borne out by the fact that at the time of the alleged delivery on June 22 1962 police assistance was applied for and obtained
From the foregoing it is clear that Jamuna was in effective possession of the field on the date of the occurrence
But it was urged on behalf of the prosecution that rightly or wrongly PW 17 had taken possession of the property on June 22 1962 and therefore if Jamuna had any grievances he should have agitated LISupCI68 15 462 the same in a court of law and that his relations had no right to take law into their own hands
This contention is based on a misconception of the law
If by the alleged delivery PW 17 could not be held to have been put in possession of the field he could not be said to have been in possession of the same
The fact that some formalities were gone through in pursuance of an unauthorised order issued by PW 5 is no ground for holding that possession of the field had passed into the hands of PW 17 Steps taken by PW 17 and others who accompanied him on June 22 1962 were unauthorised acts
It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law he is entitled to defend his possession even against the rightful owner
But stray or even intermittent acts of trespass do not give such a right against the true owner
The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner
A casual act of possession would not have the effect of interrupting the possession of the rightful owner
The rightful owner may re enter and reinstate himself provided he does not use more force than necessary
Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost
The persons in possession by a stray act of trespass a possession which has not matured into settled possession constitute an unlawful assembly giving right to the true owner though not in actual possession at the time to remove the obstruction even by using necessary force
It is not the case of the prosecution that between June 22 and July 1 1962 the complainant or his men had been to the field in question
We have earlier seen that PWs 17 and 19 had unsuccessfully tried to intimidate Jamuna on June 30 1962 to deliver peaceful possession of the field
It is only thereafter on July 1 1962 they along with their friends went to the field with a tractor and at that time PW 19 was armed with a pistol for which he had no licence
It was at that stage the appellants who are close relations of Jamuna came to the field some armed with sticks and others with spears
They first asked the complainant s party to clear out of the field but when they refused they pushed them and thereafter attacked them as a result of which PW 17 PW 19 and the tractor driver Acharya were injured see evidence of PW 19 R P Dutt
The injuries caused by them were held to be simple injuries
From the proved facts it is evident that PWs 17 and 19 had gone to the field with their friends PW 19 being armed with a 463 deadly weapon with a view to intimidate Jamuna and to assert their possession
Therefore they were clearly guilty of criminal trespass
They also constituted an unlawful assembly
The law relating to defence of property is set out in section 97 IPC which says that every person has a right subject to the restrictions contained in section 99 to defend First his own body and the body of any other person against any offence affecting the human body Secondly the property whether movable or immovable of himself or of any other person against any act which is an offence falling under the definition of theft robbery mischief
or criminal trespass or which is an attempt to commit theft robbery mischief or criminal trespass
Section 99 of the Code lays down that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities
It further lays down that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence
It was urged on behalf of the prosecution that even assuming that Jamuna was in possession of the field in view of the delivery that had taken place on June 22 1962 he and his relations had enough time to have recourse to the protection of the public authorities and therefore the appellants could not claim the right of private defence
The case of Jamuna and the appellants was that they were unaware of the alleged delivery on June 22 1062
Admittedly neither Jamuna nor any of the appellants were present at the time of that delivery
Nor is there any evidence on record to show that they were aware of the same
Further as seen earlier the conversation that PWs 17 and 19 had with Jamuna on the day prior to the occurrence proceeded on the basis that Jamuna was still in possession of the field
Under these circum stances when the complainant party invaded the field on July 1 1962 Jamuna s relations must have been naturally taken by surprise
Law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities
The right of private defence serves a social purpose and that right should be liberally construed
Such a right not only will be a restraining influence on bad characters but it will encourage the right spirit in a free citizen
There is nothing more degrading to the human spirit than to run away in the face of peril
In Jai Dev vs State of Punjab 1 this Court while dealing with the right of defence of property and person observed at p 500 In appreciating the validity of the appellants  argument it would be necessary to recall the basic assump 1 464 tions underlying the law of self defence
In a wellordered civilised society it is generally assumed that the State would take care of the persons and properties of individual citizens and that normally it is the function of the State to afford protection to such persons and their properties
This however does not mean that a person suddenly called upon to face an assault must run away and thus protect himself
He is entitled to resist the attack and defend himself
The same is the position if he has to meet an attack on his property
In other words where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available the individual citizen is entitled to protect himself and his property
That being so it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose
The exercise of the right of private defence must never be vindictive or malicious In Horam and others vs Rex1 a division bench of the Alla habad High Court observed that where a trespasser enters upon the land of another the person in whom the rightful possession is vested while the trespasser is in the process of acquiring possession may turn the trespasser out of the land by force and if in doing so he inflicts such injuries on the trespasser as are warranted by the situation he commits no offence
His action would be covered by the principle of private defence embodied in sections 96 to 105 IPC
Similar was the view taken by a division bench of the Hyderabad High Court in Sangappa and Ors
vs State2
Therein it was held that if some body enters on the land of a person who does not acquiesce in the trespass he would still retain possession of the land and as the possessor of the land is entitled to that possession
If he brings friends with him and with force of arms resists those who are trespassing on the land who are also armed he and his friends would not be guilty of forming themselves into an unlawful assembly for those who defend their possession are not members of an unlawful assembly
If the person acquiesces in his dispossession and subequently under claim of title comes again to dispossess his opponents then he and his friends would be members of an unlawful assembly
That is also the view taken by the Madras High Court in re
Mooka Nadar3 We are in agreement with the ratio of those decisions
1 2 ILR 3 AIR 1943 Mad
465 On the basis of the proved facts it cannot be said that the appellants had exceeded their right of private defence
In the result this appeal is allowed the conviction of the appellants is set aside and they are acquitted
RKPS Appeal allowed


Summary:
Certain land which was evacuee property acquired by the Central Government under the Displaced Persons Act 1954 and under the management of the Managing Officer was purchased by A at a public auction on January 2 1961
Pro visional delivery of the property was given to the vendee on October 10 1961
A sale certificate was issued to him on February 8 1962 and the actual delivery was given on June 22 1962 on a warrant issued by the Managing Officer
On July 1 1962 when A accompanied by a party went to the land with a tractor to level the land the appellants attacked the complainant s party and caused injuries to some of them
Upon their subsequent prosecution the plea taken on their behalf was one of private defence
Their case was that their relation J was the tenant in the land for over 30 years and his tenancy was never terminated there was no delivery on June 22 1962 and the alleged delivery was without the authority of law and of no effect J therefore continued to be in possession of the property on July 1 1962
The appellants had therefore used minimum force to prevent the cormplainant s party from taking forcible possession of the land
The Courts below accepted the prosecution version and convicted the appellants under sections 447 and 324 read with 149 and 148 IPC
On appeal to this Court HELD  Allowing the appeal  On the basis of the proved facts it could not be said that the appellants had exceeded their right of private defence
465 A It was not disputed that J was in possession of the field on June 22 1962 and the record established that he continued to be the tenant of the land even after the sale in favour of A
After the issue of the sale certificate to A the Government had no interest in the land and the managing officer was not therefore competent to evict J He bad no interest in the land on June 22 1962 and could not have issued any warrant for the delivery of the field on that date
The alleged delivery therefore had no legal force in the eye of the law it was non est
461 B There was no force in the contention that the delivery in question was effected under section 193 of the Displaced Persons Act 1954
The provisions of that Section apply only to properties which are under the control of the managing officers or managing corporations and not to properties which have ceased to be evacuee properties
Furthermore it was not 456 shown that any action under sub sections 1 and 2 of section 19 which was a condition precedent for taking action under sub section 3 had been taken against J 460 H Normally before a tenant can be evicted from his holding his tenancy must be terminated and the eviction should be done through a Court of competent jurisdiction
A who had become the owner of the land long before June 22 1962 could not have evicted J from the land in the manner alleged
459 E Lallu Yeshwant Singh vs Rao Jagdish Singh and others  It could not be said that as A had rightly or wrongly taken on of the property on June 22 1962 J should have agitated the matter in a court of law and the appellants had no right to take the law in their own hands
The fact that some formalities were gone through in pursuance of an unauthorised delivery order was no ground for holding that possession of the field had passed to A
It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law he is entitled to defend his possession even against the rightful owner
But stray or even intermittent acts of trespass do not give such a right against the true owner
The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner
A casual act of possession would not have the effect of interrupting the possession of the rightful owner
The rightful owner may re enter and reinstate himself provided he does not use more force than necessary
Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost
The persons in possession by a stray act of trespass a possession which has not matured into settled possession constitute an unlawful assembly giving right to the true owner though not in actual possession at the time to remove the obstruction even by using necessary force 462 B E From the proved facts it was evident that A and his party of whom one was armed had gone to the field with a view to intimidate J and to assert their possession
They were therefore guilty of criminal trespass and also constituted an unlawful assembly
The appellants were therefore entitled to prevent hem by using necessary force from taking possession
462 HI In re Jogali Bhaigo Naiks and Anr
AIR 1927 Mad
97 Jai Dev vs State of Punjab  Horam and others vs Rex  Sangappa and Ors
vs State ILR  in re Mooka Nadar AIR 1943 Mad 590 relied upon