Sant And Anr. vs The Union Of India (Uoi) on 4 July, 1961
In AIR 1960 Cal 189 (supra) the facts were that Abdul Sukur and one Abdul Gafur were tenants of the complainant in respect of certain land over which some huts were constructed by the accused persons. The lands with the huts thereon were purchased by the complainant at an auction sale in execution of a decree against the accused and thereafter he obtained vacant possession through the Civil Court peon with police help. After having obtained possession the complainant locked up the southern gate but allowed some men who were carrying on tailoring business to live therein. Thereafter the accused persons and some others went to the place, drove out the persons who were carrying on tailoring business and forcibly took over possession. The complainant was, however, not present at that time and it was held that a case of criminal trespass was not made out. It may be pointed out, with respect, that the complainant had obtained possession and the tailors were in possession by his leave and licence and as such he was a person in constructive possession and the mere that he was not present at the time of trespass should not have made a difference provided the trespass had been committed with intent to annoy him.