Back
IN THE HIGH COURT OF ALLAHABAD
P. N. Goel, J.
CHHIDDA LAL - Appellant
Versus
BAL SWARUP - Respondents
. . Of .
Decided On : 09/07/1981
CRIMINAL TRESPASS - SECTION 441, I. P. C. - INTERPRETATION - UNAUTHORIZED POSSESSION OR USE - INTENTION - CIVIL REMEDY.
Fact of the Case:
Dispute over a shop in Dadri, Uttar Pradesh. Appellant (Chhidda Lal) claimed ownership and alleged that the respondent (Bal Swarup) was in unauthorized possession. Respondent claimed tenancy and partnership with the appellant. Appellant served a notice under Section 441, I. P. C. to vacate the shop, which was not complied with. Appellant filed a complaint under Section 448, I. P. C. Magistrate convicted the respondent. On appeal, the Sessions Judge acquitted the respondent.
Finding of the Court:
The court held that the appellant failed to prove the existence of a partnership between the parties and that the respondent was not a tenant of the shop. The court further held that the respondent was in actual possession of the shop from the times of his father and that the appellant became the owner of the shop through a private partition. The court concluded that the respondent did not have the intention of taking unauthorized possession or making unauthorized use of the shop and that the appellant's remedy lay in a civil court.
Issues: 1. Whether the appellant proved the existence of a partnership between the parties. 2. Whether the respondent was a tenant of the shop. 3. Whether the respondent had the intention of taking unauthorized possession or making unauthorized use of the shop.
Ratio Decidendi: 1. The court held that the appellant failed to prove the existence of a partnership between the parties based on the lack of documentary evidence, discrepancies in oral testimony, and the absence of a clear indication of the nature of the partnership business. 2. The court held that the respondent was not a tenant of the shop as there was no evidence to support this claim and the respondent's application under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 did not establish a landlord-tenant relationship. 3. The court held that the respondent did not have the intention of taking unauthorized possession or making unauthorized use of the shop as he was in actual possession from the times of his father and there was no evidence of a private partition agreement.
Final Decision: The court dismissed the appeal, holding that the respondent was not guilty of criminal trespass and that the appellant's remedy lay in a civil court.
( 1 ) DECISION of this appeal preferred by Chhidda Lal against the order dated 30-7-1979 passed by the 1st Additional Sessions Judge, Ghaziabad in Criminal Appeal No. 91 of 1978 acquitting respondent Bal Swarup, real brother of the appellant of an offence punishable under Section 448, i. P. C. depends upon an interpretation of Section 441, I. P. C. as amended in the year 1961 in the state of Uttar Pradesh.
( 2 ) SECTION 441, I. P. C. defines criminal Trespass. After the amendment of the year 1961, Section 441 runs into two paragraphs which are reproduced below:
1. Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,
2. or having entered into or upon such property, whether before or after the coming into force of the Criminal Law (U. P. Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice is said to. commit criminal trespass.
( 3 ) IT is undisputed that the first paragraph of this section is not applicable to the present case. The case of the appellant hinges on the second paragraph. The second paragraph can easily be divided in two parts, (1) whoever having entered into or upon such property (such property means property in possession of another), with the intention of taking unauthorised possession or making unauthorised use of such property, and (2) fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice.
( 4 ) IN the present case the dispute relates to a shop situated in the town of Dadri. It is undisputed that the complainant gave notice to the respondent on 5-7-1977 calling upon him to vacate the shop by 31-7-77. As the respondent did not vacate the shop the appellant filed complaint before the Magistrate on 1-8-1977. It will thus be seen that the complainant made compliance of the second part of para 2.
( 5 ) IT is to be seen in the present case whether the case of the respondent falls within the first part of the second paragraph referred to above. It means that the complainant has to show that the respondent had entered upon the shop with the intention of taking unauthorised possession or making unauthorised use of the shop,
( 6 ) IN order to constitute an alleged offence there should be a criminal mens rea The word "with the intention of taking unauthorised possession or making unauthorised use of such property" indicate the mens rea of the offender.
( 7 ) THE factory of the present case will now be examined. The complainant alleged in his complaint that there was partnership between him and the respondent, that the said partnership came to an end in the year 1974, that thereafter he asked the respondent to vacate the shop, that the respondent went on evading, that the appellant did not take immediate action against the respondent because he was his real brother and that when he noticed that the respondent had dishonest intention, he gave notice to the respondent on 5-7-77, which was duly served upon him.
( 8 ) DEFENCE of the appellant was that he was tenant of the shop from the year 1959 and that there was no partnership between him and the appellant.
( 9 ) IN support of this case Chhidda Lai complainant examined himself as P. W. 1, Magtu Singh (P. W. 2) and Gajjan Singh (P. W. 3) and filed some documents. On the other side the respondent examined a common relation Chandrabhan Singh (D. W. 1 ). Statement of Chandrabhan
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
