Jaddan Maddan Kallu and Bhagwati have been convicted by the 1st Class Magistrate, Mainpuri under Section 451 I.P.C. and sentenced to R.I. for six months. On appeal the III Temporary Civil and Sessions Judge has upheld the conviction and confirmed the sentenced passed on the accused. The applicants have now come up to the Court in revision.

2. The case for the prosecution is that Multan and his brother Ghaffar (died subsequently) were in possession and in occupation of a house situated in village Dharajpur, police station Kuraauli district Mainpuri since the time of their ancestors. Smt. Akhtari W/o Ghaffar along with her children is alleged to be living in the said house, at the time of the occurrence. It is the case for the prosecution that on 3-3-1968 at about 2 p.m. the accused entered the disputed house when Ghaffar was away in Mainpuri. They ejected Multan and Smt. Akhtari and her children after giving them a beating and throwing out their articles. Ashiq Ali. Ant Ram and Bishun Daval reached the spot. The accused told them that they had purchased the house. It is said that Multan thereafter went to the police station to lodge a report but the report was not taken down. On 5-3-1968 Ghaffar submitted an application Ex. I to the Superintendent of police. Mainpuri who directed the police of Karauli to enquire and submit a report. Investigation was conduct and the accused were charge-sheeted. The defence of the accused was that Multan and Ghaffar wanted to purchase the Khandar (house) in question for Rs. 2,000/- but because the accused purchased it from the owners for Rs. 2500/-, therefore a false case has been started against them.

3. The prosecution in support of its case examined Multan (P.W. 1) Ashiq Ali (P.W. 2) Ant Ram (P.W. 3) Bishun Dayal (P.W. 4) and H. C. Ram Singh (P.W. 5) Ant Ram and Bishun Dayal turned hostile and did not say a word about the occurrence except that both of them stated that they had seen the articles of the house of Abdul Ghaffar outside the house and that the disputed house was a Khandar since long. Ant Ram further stated that at the time of occurrence nobody was living in the Khandar as it was not habitable. The accused in support of his case produced Vipin Behari Lal (D.W. 1) as an attesting witness of the sale deed dated 5-3-1968 alleged to have been executed by Suresh Chandra and others in favour of Jaddan applicant. Kishan Lal (P.W. 2) Chairman of the Town Area Committee has also been produced in defence to state that the disputed house was a khandar and uninhabitable and none was living in it prior to the execution of the sale deed. The Magistrate relying upon the testimony of Multan and Ashiq Ali held that the accused had raised the house of Ghaffar, thrown his articles out of the house, and taken possession thereof after ejecting Multan and his brother's wife and children. He found the act of the accused culpable under Section 451 I.P.C. In appeal the Session Judge has discarded the prosecution case to the effect that injuries were caused to the children. He has held that it has not been proved that the children of Ghaffar were beaten. The Sessions Judge has also held that the allegations regarding the taking away by the accused of silver chain and cash were exaggerated. The Sessions Judge has further discarded the plea of the accused that they ejected Multan and others in the exercise of their bona fide right or claim to the property in question. He has pointed out that as the occurrence had taken place on 3-3-1968 while the sale deed which is said to form the basis of title of the accused-applicants was executed on 5-3-1968; hence the accused could not have a bona fide claim to the property in question on the date of occurrence.

4. I have heard counsel for the parties and have also perused the record of the case. To my mind the sole question for determination in this case is as to whether the constructions in dispute could be deemed to be a building within the meaning of Section 4