# MUNSm RAM AND OTHERS v. DELffi ADMINISTRATION November 27, 1967'

- **Citation:** [1968] 2 S.C.R. 455
- **Court:** Supreme Court of India
- **Decided:** 1967-11-27
- **Bench:** S. M. S!Kri, J. M. Shelat, K. s. llEGDE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/munsm-ram-and-others-v-delffi-administration-november-27-1967-4221
- **Pages:** 11

## Headnote

Indian Penal Code, 1860, ss. 91, 447, 324, 149 and 148--Comp/ainant
purchasing in public auction land c.cquired· by Central "Government under
the Displaced Persons Act, 1954---'1fter issue of sale certificate Government purporting to give him delivery
through a warrant
issued by a
Monaging Officer---1'fject of-Another person proved to
be tenant and
i.n possession--complainant's party on attempting to take possession
repelled by force-whether right of private defence existed or acceded.
Displaced Persons Act, 1954 s. 19(3)-&ope of.
Certain land which was evacuee property acquired by the Central
Government under the Displaced Persons Act, 1954
ancl
under
the
management of the Managing Officer, was purchased by A at a public
auction on January 2, 1961.
Pro,isional delivery of the property was
given to the vendec on October 10, 1961.
A sale certificate was issued
to him on February 8, 1962, and the actual delivery was given on June
22, 19'62, on a warrant issued by the Managing Officer.
On July 1, 1962, when A, accompanied by a party, went to the land
w'.th a tractor to level the land, the appellants attacked the complainant's
party ancl caused injuries to some of them. Upon their subsequent proseeution, 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
bi.. 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 complainant's party from taking forcible possession of the land. The Courts
below accepted the prosecution version and convicted the appellants under
ss. 447 and 324 read with 149 ancl 148 IPC.
On appeal to this Court,
HELD : Allo .ving the appeal : On the basis of the proved fact• it
could not be said that the appellants had exceeded their right of private
defence. f 465 Al
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 Lsue 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 had no interest in the
land on June 22. 1962 and' could not have issued any warrant for the
deliverv of the field on that date. The alleged delivery therefore bad no
legal force; in the eye of the law it was non-est. [461 Bl
There was n1> force in the contention that the delivery ln question was
effected under s .. 19(3) of the Displaced Persons Act, 1954. The provisions of that Section annlv onlv to propertie• which are under the control
of the managin2 officers or managin2 corporations and not to properties
which have ceased to be evacuee properties.
Furthermore, it was . not
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[I 968] 2 S.CR
shown that any action under sub-sections (1) and (2) of s. 19. which
A
was a condition precedent for taking ac1ion under sub-section S3), bad
been taken a~ainst J. [460 HJ
Normally before a tenant can be c\icred from bis holdinJ?. his tenancy
mu't be terminated and the eviction should be done through a Court of
competent jurisdiction.
A who had become the owner of the land long
hcforc June :!2. 1962 couJ<l not have evicted J from the land in the manner
alleged. [459 EJ
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Lallu Yeshll'n111 Singh v. Rao lagdish Singh mu/ 01/iers, [1968] 2 S.C.R.
'.!03.
It could not be soid that os A had. rightly or wrongly, taken possession
of the property on June 22. I 962, J should have agitated the matter in
a court of law and the appellonts had no right to take the Jaw in their
own hands.
The fact that some formalities were gone throu$ in pursuance of an unauthorised delivery orc.kr was no ground for holding th:tt
ros'es.ion of the field hod passed to A.
It is true that no one including the true 0\1

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MUNSm RAM AND OTHERS
v.
DELffi ADMINISTRATION
November 27, 1967'
[S. M. S!KRI, J. M. SHELAT AND K. s. llEGDE, JJ.]
Indian Penal Code, 1860, ss. 91, 447, 324, 149 and 148--Comp/ainant
purchasing in public auction land c.cquired· by Central "Government under
the Displaced Persons Act, 1954---'1fter issue of sale certificate Government purporting to give him delivery
through a warrant
issued by a
Monaging Officer---1'fject of-Another person proved to
be tenant and
i.n possession--complainant's party on attempting to take possession
repelled by force-whether right of private defence existed or acceded.
Displaced Persons Act, 1954 s. 19(3)-&ope of.
Certain land which was evacuee property acquired by the Central
Government under the Displaced Persons Act, 1954
ancl
under
the
management of the Managing Officer, was purchased by A at a public
auction on January 2, 1961.
Pro,isional delivery of the property was
given to the vendec on October 10, 1961.
A sale certificate was issued
to him on February 8, 1962, and the actual delivery was given on June
22, 19'62, on a warrant issued by the Managing Officer.
On July 1, 1962, when A, accompanied by a party, went to the land
w'.th a tractor to level the land, the appellants attacked the complainant's
party ancl caused injuries to some of them. Upon their subsequent proseeution, 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
bi.. 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 complainant's party from taking forcible possession of the land. The Courts
below accepted the prosecution version and convicted the appellants under
ss. 447 and 324 read with 149 ancl 148 IPC.
On appeal to this Court,
HELD : Allo .ving the appeal : On the basis of the proved fact• it
could not be said that the appellants had exceeded their right of private
defence. f 465 Al
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 Lsue 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 had no interest in the
land on June 22. 1962 and' could not have issued any warrant for the
deliverv of the field on that date. The alleged delivery therefore bad no
legal force; in the eye of the law it was non-est. [461 Bl
There was n1> force in the contention that the delivery ln question was
effected under s .. 19(3) of the Displaced Persons Act, 1954. The provisions of that Section annlv onlv to propertie• which are under the control
of the managin2 officers or managin2 corporations and not to properties
which have ceased to be evacuee properties.
Furthermore, it was . not
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[I 968] 2 S.CR
shown that any action under sub-sections (1) and (2) of s. 19. which
A
was a condition precedent for taking ac1ion under sub-section S3), bad
been taken a~ainst J. [460 HJ
Normally before a tenant can be c\icred from bis holdinJ?. his tenancy
mu't be terminated and the eviction should be done through a Court of
competent jurisdiction.
A who had become the owner of the land long
hcforc June :!2. 1962 couJ<l not have evicted J from the land in the manner
alleged. [459 EJ
B
Lallu Yeshll'n111 Singh v. Rao lagdish Singh mu/ 01/iers, [1968] 2 S.C.R.
'.!03.
It could not be soid that os A had. rightly or wrongly, taken possession
of the property on June 22. I 962, J should have agitated the matter in
a court of law and the appellonts had no right to take the Jaw in their
own hands.
The fact that some formalities were gone throu$ in pursuance of an unauthorised delivery orc.kr was no ground for holding th:tt
ros'es.ion of the field hod passed to A.
It is true that no one including the true 0\1,:ner has a right 10 <lisposscs.~
the trespasser by force if the trespasser is. in settled possession of the land
.ind in such a case unJess he is eviclcd in due course of lavt, he is entitled
to defend his possession even against the righlfut owner.
llul stray or
even intermittent a'-ls of trespass do not give such a right against the true
owner. 1bc passession which a trespasser is entitled to defend a.i?ainst the
riahtful owner must be a settled possession extcndinJ.t over a sufficiently
long period and acquiesced in by the true owner.
A casual act of possession "M'ould not have the effect of interrupting the possession of the right·
ful owner. The ridltful ov.·ner mav rc~nter and rcins1ate himself provided
he doc-; not use more force than nc.cessacy.
Such entry v.·ill he 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
\\'hich has not matured into settJed passcssion. constitute an
unlawful
H'i\Cmhlv. giving right to the true ov.:ner, though not in actual possession
at the time, to remove the ohstruction even by
usin~ neces-:'arv
force.
1462 R-EJ
From the proved facts. it was e\ident that A and his party. of whom
one wa.11 anncd, had gone to the ficJd with a view to intimidate J and to
:issert their passession.
They were therefore guiJty of c;riminal trespa~s
and al'iO constituted an unh1v.·ful assemb1v. The al)peltnnts u.·erc therefore
~ntillcd 10 prevent •hem. b~· u11ing ncce~~;1ry force, from laking possession.
!462 H!
Jn re Jo11ali Bhai110 Nnik.< and Anr. AIR 1927 Mad. 97. lei Dev v.
State of Punjnh, [1963] 3 S.C.R. 489: //oram nncl other.< v. Rex. 50 Cr. U.
X68: San.~appa and Or.<. v. Sta'.e. ILR 11955) Hyderabad 406; in re Monka
Nadar, AIR 1943 Mad. 590, relied upon.
CRIMINAL APPELLATE JuRISDlCTIO?" : Criminal Appeal No.
124 :>f I 965
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.
Rltawani Lal, Kartar Si11gh Stiri and E. C. Agrawala for
P. C A /?rawa/a, for the appellants.
R. ,V. Sachthey, for the respondent.
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MUNSHI RAM v. DELHI ADM. (Hegde, J.)
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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. 1129/477
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. 7,600. Provisional delivery of that property was
given to the yendee on October 10, 196 l. 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 oflicer.
The said delivery was effected by PW I 0 Sham Da, Kanungo.
On July I, 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 tractor to level the land. the appellants came anned with spears and
lathis attacked the complainants' party and caused in.juries to
PWs 17 and 19 and the tractor driver, B. N. Acharya.
Though .the appellants in their statement under s. 342 Cr.P.C.
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 thirtv
years.
His t~nancy was never tem1inated.
He had raised. crop's
in the field in question.
There was no deliver} qn June 22.
1962. · If there was any delivery as alJeged by the prosecution, the same was without the_ authority of law and as such
wa~ of no effect.
Hence, Jamuna continued to be in possession of the property even on July I, 1962.
On the day
prior to the occutTence, 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 anned 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
SUPREME COURT REPORTS
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so, they pushed them and thereafter used minimum force to throw
them out of the field.
0n 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 appell<1nts have been convicted under
ss. 447, 324 read with 149 and 148 I.P.C.
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 s. 342
Cr.P.C. 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 i;>lead selfdefence, it is open to the court to consider such a plea 1f the same
arises from the material on record-see In re Jogali Bhalgo Nalks
and another( 1 ).
The burden. of establishing that plea is on the
accused and that burden can be discharged by showing preponderance 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, i.e., ori July 1, 1962.
For deciding that 'que.stion 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 sai<! 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 posse.ssion 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. PT.
Tho courts below
have also proceeded on the! basis that Jamuna was in possession
of the field till June 22, 1 962. Therefore, we have to see whether
there was any lawful delivery of th~t 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. PF). 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 tenarJly
had been terminated by any of the authorities constituted under
(0 AIR 1927 Mad. 97.
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MUNSHI RAM v. DELHI ADM. (Hegde, J.)
459
the Displacl!d Persons (Compensation and Rehabilitation) Act
19 54 (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 J amuna
~ was not present.
There is also no evidence to show that J amuna
was aware of the alleged delivery.
It is true that as a token of
tbc 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 deliD
vc;ed the field, vplued the crops in question at Rs. 60 and the
same was deposit~ 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.
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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 Lal/u Yeshwant
Singh v. Rao Jagdish Singh and others('). Therefore, it is clear
that PW 1 7 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
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had long been alienated. The managing officer had already given
to the vendee such possession a5 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.
H · 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.
en [196SJ 2 s.c.R. 20J.
460
Sl.'PRLME ('OURT REPORTS
(1968] 2 S.CR
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 s. 19 of the Act. section 19.
10 the extent it is material for our present purpose, reads thus :
.. I I l Notwithslanding anything contained in any conlract 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
tenninate 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 per>on, whether such allotment or le<•s.:
was granted before or after the commcmement of this Act.
I 2) Where any person-( a) has ceased to be eniitkd
to the possc"ion of any evacuee property by
reason of a~y action taken under sub:section
(I ) , or ( h l is otherwise in unauthorised po~se.s
sion of any evacuel! 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 again>t
his eviction from such property, surrender p<l'>-
scssion of the property on demand being made
in 1his 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 or 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 be used such force as rllay b<!
necessary."
The above provisions apply only to.properties which are. under
the control of the managing officers or managing corpomtions.
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· They do not apply to properties which have ceased to be evacuee
properties.
Further, it is not the prosecution case that any action
unller sub-ss. I and 2 of s. 19 had ever been taken against Jamunn.
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If that was so; ao action under sub-s. 3 of s. 19 could have been
taken.
As a condition pte<;edent for taking action under sub-s. 3
of s. I 9 it was necessary to take the steps prescribed hy 'ub-s. 2
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MUNSHI RAM v. DELHI ADM. (Hegde, J.)
461
of s. 19. It must be noted that the power conferred under sub-s.
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-s. 2 of s. 19, the managing officer was incompetent to issue
any warrant for delivery under sub-s. 3 of s. 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
ori: June 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
spn 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. All 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 unwilling 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 right)y 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
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SUPREME COURT REPORTS
{1968J.2 S.C.R.
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 fonnalities were gone through in pursuance of an
unauthorised order issued by PW 5 is no ground for holding that
po&session of the field had passed into the hands of PW 17.
Steps taken by PW 17 and others wh.o 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 trespa~ser 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 intennittent 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
~ession extending over a sufficiently loni_period and acquiesced
m by the true owner.
A casual act of possession would not have
the effect of interrupting the possessiou_-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
view.ed only as a resistance to an intrusion up(>n possession which
has never been lost.
The persons in possession by a stray act of
trespass, a ~<ession 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.
lt is not the case of the prosecution that between June 22 and
July I, 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, I 962 to
deliver peaceful possession o( the field.
It is only thereafter on
July I, I 962, they along with their friends went to the field with
a tractor, and at that time PW I 9 was anned 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 anned 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 iniuries 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 anned with a
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MUNSHI RAM v. DELHI ADM. (Hegde, J.)
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 as~embly.
The law relating to defence of property is set out in s. 97 IPC,
which says that every person has a right, subject to the restrictions
contained in s. 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 inunovable, 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 trt<spass. 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 J amuna 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, 1962.
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
eadier, the conversation that PWs 17 and 19 had with Janmna
on the day prior to the occurrence, proceeded on the basis that
Jamuna was still in possession of the field.
Under these circumstances when the complainant party invaded the field on July l,
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 v. State of Punjab('), this Court while dealing with
the right of defence of property and person observ,ed (at p. 500)
H
"In appreciating the validity of the appellants' argument, it would be necessary to recall the basic assump-
(1J"[l963J ) s.c.R. 489.
464
SUPREME COURT R~PORTS
[1968] 2 S.C.R.
tions u,nderlylllg tile law of self-defence. · In a well-
•miered civilised society it is generally assumed that the
State would take care of the persons and properties" of
individual citizens ,and that nonnally it is the function
of the State to afford p,rotection to such persons and
their properties.
This, howevct, 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 Haram and others v. Rex('), a division bench of the Allahabad High Court observed that where a trespasser enters upon
the land 'of another, th~ person in whom the rightful possession is
vested, while the trespasser is in the pi;ocess of acquiring possession, may tum the trespasser out of the land by force and if in
doing so, he inflicts such injuries on the trespasser as are wiirranted by the situation, he commits no offence.
His action would be
covered by the principle of private defence embodied in ss. 96 to
105 .IPC: Similar was the view taken by a division bench of
the Hyderabad High Court in Sangappa and Ors. v. State(•),
Therein it was held that if some body enters on the land of a
person who doe's not acquiesce in the trespass he would stilt retain
possession of the land and as the possessor of the land, is entitled
to that possession. If lie brings friends with him and witJ:t force
of arms resists those who are trespassing on the land, who are
also armed, he and his friends would not be guilty or 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 dispo,ssession and subequently, under claim
of title comes again to dispossess his opponents, then he and ·his
friends would be members of an unlawful a5sembly.
That is also
the view taken by the Madras Hi~ Court in re. Mooka Nadlir(8).
We are in agreement with the ratio of those decisions.
(I) 50 Cr. L.J. 868.
(2) I.L.R. [1955) Hyderabad 406.
(3) A.T.R. ~943 Mad. 590.
B
c
F
G
H
MUNSHI RAM v. DELHI ADM. (Hegde, J.)
465
A
On the basis of the proved facts it cannot be said that the
appellants had exceeded their right cif private defence.
In the result, this appeal is allowed, _the conviction of
th~
appellants is set aside and they are acquitted.
8
R.K.P.S.
A{Jpeal a/lmvt'd.