Rajasthan High Court - Jodhpur
Khangara Ram vs State & Anr on 13 December, 2011
Author: Sandeep Mehta
Bench: Sandeep Mehta
S.B. CRIMINAL REVISION PETITION NO. 1071/2008
(Khangara Ram Vs. State of Rajasthan & Anr.)
DATE OF ORDER : 13.12.2011
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr. Suresh Kumbhat, Mr. Sheetal Kumbhat, for the petitioner.
Mrs. Chandralekha, Public Prosecutor.
Mr. Pradeep Shah, for the respondent No.2.
Heard learned counsel for the parties and perused the orders impugned.
The present revision petition has been filed by the petitioner Khangara Ram challenging the order dated 28.06.2008 passed by the learned Addl. Sessions Judge, Bhinmal in Criminal Appeal No.42/2007 (Sona Ram Vs. State of Rajasthan), whereby, he has set aside the order dated 24.06.2006 passed by the learned Addl. Chief Judicial Magistrate, Bhinmal, whereby, the learned Appellate court has reversed the order of the learned Addl. Chief Judicial Magistrate, Bhinmal directing possession of the property in question to be handed over to the petitioner under the provisions of Section 456 Cr.P.C.
Learned counsel for the petitioner submits that the respondent No.2 was convicted for trespassing and for causing damage to the property in question by the judgment dated 24.06.2006 for offences under Sections 447 and 427 IPC. He submits that simultaneously the learned trial Judge has directed the possession of the property in question to be handed over by the accused Sona Ram to the petitioner-complainant Khangara Ram. Learned counsel submits that the finding of conviction of the respondent No.2 was never challenged by the respondent No.2 in any court and thereafter an appeal was filed challenging the directions issued by the learned trial court for handing over the possession of the property in question.
Learned counsel has also pointed out to this Court that in the appeal filed by the respondent, prayer has been limited to the extent of challenging the directions issued under Section 456 Cr.P.C.
Learned counsel submits that the order of the learned Appellate Court is absolutely illegal because the learned Appellate Court has directed that an enquiry be made about the ownership of the property, which is not in the domain of the criminal court.
Learned counsel has placed reliance on the decision in the case of Rameshwar Nath Vs. State and Another, reported in 1965 Allahabad Law Journal 747, wherein, the Hon'ble Allahabad High Court has held that in a criminal case, whenever a criminal court comes to a conclusion that a person has been illegally forcibly dispossessed or has been kept out of possession by force, he would be entitled to be restored to possession under the aforesaid Section 522(1) Cr.P.C. (now Section 456 Cr.P.C.) irrespective of his right, title or interest in the property. Thus, it is prayed that the order of the appellate court dated 28.06.2008 deserves to be set aside and the order of the trial court dated 24.06.2006 deserves to be restored.
Learned counsel appearing on behalf of the respondent No.2 is not in a position to dispute the fact that the finding of the learned trial court holding the respondent No.2 to be a trespasser of the property was never challenged by way of an appeal. But he submits that the right to regain possession flows from the right of ownership and thus, he states that the appellate court has committed no error in directing the trial court to hold an enquiry in this regard.
This court is of the opinion that the judgment of the learned Appellate Court, whereby, he has reversed the order of the learned Magistrate on the ground that enquiry needs to be made in relation to the ownership or title over the property in question before handing over the possession is clearly illegal. The trial court's finding regarding the respondent No.2 accused being a trespasser on the property has not been challenged as is apparent from the memo of appeal present on the record of the case. Once, the respondent No.2 was held to be a trespasser on the property, then, the necessary consequence of such a finding was that the possession had to be restored to the person who had been dispossessed. Thus, the judgment of the learned Appellate Court is absolutely illegal.
The upshot of the above discussion is that the revision petition succeeds. The order dated 28.06.2008 passed by the learned Addl. Sessions Judge, Bhinmal in Criminal Appeal No.42/2007 (Sona Ram Vs. State of Rajasthan) is hereby quashed and set aside and the order dated 24.06.2006 passed by the learned Addl. Chief Judicial Magistrate, Bhinmal directing handing over the possession of the property in question to the petitioner is restored.
(SANDEEP MEHTA), J.
ms rathore