# PURAN SINGH & ORS v. STATE OF PUNJAB April 25, 1975

- **Citation:** [1975] Supp. 1 S.C.R. 299
- **Court:** Supreme Court of India
- **Decided:** 1975-04-25
- **Bench:** N. L. Untwalia, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/puran-singh-ors-v-state-of-punjab-april-25-1975-6519
- **Pages:** 16

## Headnote

Penal Code-S. 99 to 102-Private defence when can be' exercised-" Settled
possession" 1neaning of.
A
All the appellants \\'ere convicted by the Sessions Jndge· under s. 302
read with s. 149 l.P.C. and s. 326 read with 149 I.P.C. and sentenced to life
C
in1prisonment. The High Court affirmed the conviction and sentence.
In a dispute over land 'between the party of the appellants and the con1·
plainant, the appellants alleged that they had redeemed the mortgage . in respect of the ]and and thereafter the mortgagee had himself delivered possession
of the land and that they had grown \Vheat crop in it. The complainant, to
whom the mortgagee sold· bis mortgage rights, tried to take its possession
·D
forcibly. It was alleged that on the day of the occurrence the complainant and
his party, arn1ed with deadly \veapons, entered the disputed land and tried
to destroy the \Vheat crop. In the scuffle that ensued. two pe;rsons of the
complainant's party died and ~ome persons on both sides were injured. On
the question of possession of the 1and the High Court gave a finding in favour
of the appellants but on its own interpretation of the decision of thiS Court in
M1tnshi Rani and Others v. Delhi Adn1inistration held that the appellants
vtho \Vere not in settled possession of the land, \Vere
rank trespassers and
E
secondly that, instead of indulging in a free fight with the
opposit~ party,
the appellants could have taken recourse to the public authorities. Since the
appeJJants had eXceeded the limitations provided iri s. 99 to 102 I.P.C. they
could not claim any right of private defence.
Allowing the appeal,
F
HELD : ( 1) It is· difficult to lay down any hard and fast nlle as to when
the po'SSeissjon of a trespasser can mattffe into settled possession. But \Vhat
'this Court really meant was that the ,.-possession of a trespasser must be
effective, undisturbed and to the kno\vledge of the owner or without any
attempt at concealment. There is no special charm or magic in the \VOrds
"settled possession" nor is it a ritualistic formula which can be confined in
a strait jacket but it has been used to mean such clear and effective posSes~
sion of a person, even if he is a trespasser, \Vho gets the right under the
criminal la\V .to defend his property ngainst _nttack even by the true o\vner.
G
The nature of possession in such cases which may entitle a. trespasser to
exercise the right of private defencB of property and person should contajn
the· following attributes : (I) that the trespasser
must be in actual physical
possession of the property over a sufficiently long period; (ii) that the possession must be within the knowledge either express or implied~ of the owner
or- without any attempt at concealment and Vihich contains an elcn1ent of
anifnus possendie.
The nature of possession of the trespasser \Vould ho\vever
be a matter to be decided on facts and circum5tances of each case (iii) the
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process of dispossession of the tn1e owner by the trespasser must be complete and final and mnst be acquiesced in by the tn1c owner; (iv) that one
of the usual tests to determine the quality of settled possession, in the ca1e
of culturable Jand, would be whether or not the trespasser, after having taken
possession, had grown any crop. If the crop had been grown by the trespasser,
then even the true o\vner bas no right to destroy the crop gro\vn by the
trespasser and take forcible possession. In such a case the trespasser will have
300
SUPREME COURT REPORTS
[1975] SUPP. s.c.R.
A
a right of private defen.::e and the tn1e owner will
have no right of private
defence. [307E-H, 308A-D]
It is manifest that th1~ finding of the High Court on the facts of the present
case that the appellants were not in settled possession of the land is legally
erroneous and_ cannot be allowed to stand. The ratio of the judgment of
this Court in Munshi Rain's case has not been correctly applied by the High
B
Court. [310-C-D]
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M1111slii Rani and 01'/iers v. Delhi Adn1inistra

## Text

_Characters 0–39,567 of 47,211. This is a partial read: ask again with offset=39567 for what follows._

.;. ___ _
299
PURAN SINGH & ORS.
v.
STATE OF PUNJAB
April 25, 1975.
[N. L. UNTWALIA AND S. MURTAZA FAZAL ALI, JJ.]
Penal Code-S. 99 to 102-Private defence when can be' exercised-" Settled
possession" 1neaning of.
A
All the appellants \\'ere convicted by the Sessions Jndge· under s. 302
read with s. 149 l.P.C. and s. 326 read with 149 I.P.C. and sentenced to life
C
in1prisonment. The High Court affirmed the conviction and sentence.
In a dispute over land 'between the party of the appellants and the con1·
plainant, the appellants alleged that they had redeemed the mortgage . in respect of the ]and and thereafter the mortgagee had himself delivered possession
of the land and that they had grown \Vheat crop in it. The complainant, to
whom the mortgagee sold· bis mortgage rights, tried to take its possession
·D
forcibly. It was alleged that on the day of the occurrence the complainant and
his party, arn1ed with deadly \veapons, entered the disputed land and tried
to destroy the \Vheat crop. In the scuffle that ensued. two pe;rsons of the
complainant's party died and ~ome persons on both sides were injured. On
the question of possession of the 1and the High Court gave a finding in favour
of the appellants but on its own interpretation of the decision of thiS Court in
M1tnshi Rani and Others v. Delhi Adn1inistration held that the appellants
vtho \Vere not in settled possession of the land, \Vere
rank trespassers and
E
secondly that, instead of indulging in a free fight with the
opposit~ party,
the appellants could have taken recourse to the public authorities. Since the
appeJJants had eXceeded the limitations provided iri s. 99 to 102 I.P.C. they
could not claim any right of private defence.
Allowing the appeal,
F
HELD : ( 1) It is· difficult to lay down any hard and fast nlle as to when
the po'SSeissjon of a trespasser can mattffe into settled possession. But \Vhat
'this Court really meant was that the ,.-possession of a trespasser must be
effective, undisturbed and to the kno\vledge of the owner or without any
attempt at concealment. There is no special charm or magic in the \VOrds
"settled possession" nor is it a ritualistic formula which can be confined in
a strait jacket but it has been used to mean such clear and effective posSes~
sion of a person, even if he is a trespasser, \Vho gets the right under the
criminal la\V .to defend his property ngainst _nttack even by the true o\vner.
G
The nature of possession in such cases which may entitle a. trespasser to
exercise the right of private defencB of property and person should contajn
the· following attributes : (I) that the trespasser
must be in actual physical
possession of the property over a sufficiently long period; (ii) that the possession must be within the knowledge either express or implied~ of the owner
or- without any attempt at concealment and Vihich contains an elcn1ent of
anifnus possendie.
The nature of possession of the trespasser \Vould ho\vever
be a matter to be decided on facts and circum5tances of each case (iii) the
H
process of dispossession of the tn1e owner by the trespasser must be complete and final and mnst be acquiesced in by the tn1c owner; (iv) that one
of the usual tests to determine the quality of settled possession, in the ca1e
of culturable Jand, would be whether or not the trespasser, after having taken
possession, had grown any crop. If the crop had been grown by the trespasser,
then even the true o\vner bas no right to destroy the crop gro\vn by the
trespasser and take forcible possession. In such a case the trespasser will have
300
SUPREME COURT REPORTS
[1975] SUPP. s.c.R.
A
a right of private defen.::e and the tn1e owner will
have no right of private
defence. [307E-H, 308A-D]
It is manifest that th1~ finding of the High Court on the facts of the present
case that the appellants were not in settled possession of the land is legally
erroneous and_ cannot be allowed to stand. The ratio of the judgment of
this Court in Munshi Rain's case has not been correctly applied by the High
B
Court. [310-C-D]
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M1111slii Rani and 01'/iers v. Delhi Adn1inistrario11, [1968] 2 S.C.R. 455 explained and followed.
Honun and others v. Rex, A.LR. 1949 All. 564, .'i67 Sangappa and others
v. State, I.L.H .. [1955] Hyd. 406, /11 re : Mookti l\'adar, and others AJ.H ..
[1943j !\Iad. 590, Hazara Singh and others v. The State, A.LR. 1959 Punjab
570. Bhartu v. State. A.l.R. 1954 All. 35=(1954) Cr. L.l. 54 !'hula SiaRh
v. Emperor, A.l.R. 1927 Lah. 705=28 Cr!. L.J. 848, referred to.
(2) The appe11ants \Vere protected by the right of private defence ot
their property and person and the prosecution case against the appellants,
\vhich has not-been proved beyond rea5onable doubt must fail. It is not the law
that a person when called upon to face in assault must run away to the
police station and not protect himself or when his property has been the
subject matter of trespass and mischief he should allow the aggressor to take
pos5ession of the property while he should run to the public authorities. Where
there is an attribute of invasion or aggression on the property by a person
who has no right to possession then there is o)Jviously no room to have recourse to the public authorities and the accused has an undoubted right to
resist
the
attack and use even force if necessary.
The
right of
private
defence of property or person, ivhcre there is real apprehension that the
a~gressor might cause death or grievous hurt to the victim, could extend to
the causing of death also and it is not necessary
that death or grievious hurt
should; actualfy be caused before the right could be exercised. A mere reasonable
apprehension is enough lo put the right of private defence into operation.
[311-B-Dl
Jai Dev v. Tlic State of Pr.:11iab (1963] 3 S.C.R. 489 an<l A111jad Kha1i v.
J!ie State, [1952] S.C.R. 567, followed.
Jn the present case it could not be said that the appellants had exceeded
the right of private defence. The appellants were undoubtedly in possession of
the land and hac;l grown wheat crop and the prosecution part}' had tried to
doslroy the wheat crop. The appellants were entitled to resist the invasion of
their right by the prosecution party.
Again it cannot be. said that the appellant<; had in any eYent exceeded their right of private defence. As the
rrosecnti.on had deliberately suppressed the very matedal part of the origin
of the occurrence it is not known how the occurrence started. Secondy
\Vhen
t\VO persons on the side of the accused \vere injured by gun fire it \Vas not
p6ssible for them to \veigh their blo\vs in golden scales in order to assault
the prosecntiori party. }Jter two mcmbyrs of their party had received gun s~ot
injuries the appellants would have undoubtedly a reasonable apprehension
that eith~r death or grievous hurt could be caused to the members of their party
or one of them.
This being the position they were fully justified in causing
the death of the decea-sed persons in exercise of their right of p1ivate defence
of person. Such an a_1:prehension could not be said to be hypersensitive or
based on no ground and it will be idle to content that the appellants could
have waited until one of their party members would have died or received
serious injuries before acting on the spur of moment. nor could one expect
a person who is attacked by an ag~ressor to modulate his blows in accordance
\Vith the injuries he received. [312E-ll, 313G-H, 314ABC]
State of Gujarat 11. Sai Fatin1a & Anr. [19751 3 S.C.R. 993, followed.
·+
PURAN SiNGlI· v. PUN°JAB (Faiar Ali, J.)
301
CRIMINAL ,\PPELATE JURISDICTION :. Criminal Appeal .No.
266
~
of 1971.
Appeal by special leave from the judgment and order dated the
10th February, 197_1 of the Punjab and Haryana High Court iu Criminal Appeal No. 1034 of 1969.
R. K. Garg, S. C. Agarwala and V. J. Francis, for the appellants.
h
0. P. Sharma and M. S. Dhillon, for respondent.
The Judgment of the Court was delivered by
FAZAL Au, J.-The appellants
Puran
Singh,
Piara
Singh,
B~kshish Singh, Boliar Singh aud Balkar Singh have been convicted
under S. 302/149 I.P.C, and sentenced to life imprisonment and a
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fine of Rs. 200 each and in default six months. rigorous imprisonment
and under ss. 326/149 I.P.C. to one year rigorous imprisonment and
l!nder s. 148 J.P.C. to one year simple imprisonment.
The learned
, Sessions Judge who tried the present cas~ has also convicted one Pargat
' Singh the brother of Bakshish Singh and son of Charan Singh but this
accused has been acquitted by the High Court of Punjab and Haryana-
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hereinafter ref~rred to as 'the High Court'. The High Court, has, however, affirmed tqc conviction and sentences of the five appellants and
dismissed the appeal filed by the appellants before it-hence this
appeal to this Court by special leave.
It is not necessary for us to detail the facts of this case, because
the decision of the matter lies within a very narrow compass: Mr. R. K.
Ge.rg appearing for the appellants has raised a few questions of laiv
and according to his submissions the appeal should succeed on the
question of law on the basis of the findings given by the High Court.
The unfortunate incident in the present case which led to the loss of
two valuable lives appears to be the result of chronic· land dispute
between the parties and a competitive race for taking possession of
the land by the prosecution or the accused.
The story opens with a
usdructuary mortgage which was executed by H ari Singh the original
owner in respect of 29 Kanals 14 Murlas of land in favour of the
appellants Puran Singh and Piara Singh and one Nishan Singh for a
sum of Rs. 3000/-. Soon thereafter the mortgagees sold their mortgage rights to Makhan Singh father ·of Dilbagh Singh of the prosecution party.
On July 28, 1966 the appellants Purim Singh and Piara
Singh and one Smt. Chandra daughter of the appellant Bakshish Singh
purchased the equity of redemption in the said land from Hari Singh
for a sum of Rs. 20,000 ·and undertook to liquidate the mortgage
debt. According to the defence the mortgage debt was actually discharged on May 30, 1967 and a few months later mutation was sancticmed in favour of the accused on July 13, 1967. Having, however,
failed to take possession of the mortgage property after having redeemed the mortgage, the purchasers of the equity of redemption,
namely, the party of the appellants filed a suit for possession against
Dilbagh Singh in tlie Cou~ of the Subordinate Judge, Hoshiarpur on
October 4, 1967. One of the dates fixed in this suit was October 27,
1968 when, according to the prosecution, Puran Singh, Piara Singh,
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302
SUPREME COURT REPORTS
[1975] SUPP· s.c.R.
A Ilakshish Singh, Pargat Singh and Chandra Singh entered the land
in dispute and demolished the kothas of the complainant. A complaint
was filed by Dilbagh Singh on October 30, 1968 against the accused
and Ajmer Singh Sub-Inspector of Police alleging that the accused had
entered the land and demolished the kothas belonging to the complainant
with
the active
aid
of
the police.
In
this cornB
plaint
although the complainant did not
admit in
so many
words
that
the
accused
had
taken forcible
possession
of the land
and
demolished
the kothas, yet from
the facts
and circumstances proved in this case there was no doubt that it was
a fact that the complainant in spite of his best attempts was dispo.scsscd by the party ol' the accused.
While the complaint was being enquired into, the suit filed by Puran Singh and others was dismissed
C on November 21, 1968 on the ground that the suit was not maintain3hlc and the plaint was returned to the plaintiffs for presentation to
the proper authorities, namely, Revenue Courts. Emboldened by this
success in a civil suit, it appears that the complainant Dilbagh Singh
along with Sohan Singh. Bachan Singh, Sulakhan Singh, Baj Singh
and others went to the field in question and started ploughing it and
D sowing
Sarson.
We
might
mention
here
tl1at
the
definite
case
of
the accused
has
been
that
after taking
possession
of the land in question from
the complainant
the appellants
had grown
wheat in the land
and on
the
date of occurrence the complainant party tried to destroy the crop which led to
mutual fight between the accused and the complainant patty resulting
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in the death of the two deceased persons of the prosecution party and
according to the defence injuries on Mohan Singh and Bohar Singh
who were on the side of the accused.
According to the prosecution while the prosecution party was busy
ploughing the land and sowing Sarson crop in the field all the appellants
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variously armed with gun, barchhas, kirpans, gandasis and axes cntcrcri upon the land and Pargat Singh fired his gun as a result of which
Dilbagh Singh and Bachan Singh fled away leaving the two deceased
persons and Schan Singh behind.
Thereafter the
accused
Puran
Singh
and
Piara Singh
surrounded Sulakhan
Singh
-and
inflicted
various
injuries
on
his
body
with
kirpans,
while
Bakshish Singh gave spear blows in the thigh and abdomen of Sulakhan
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Singh. The appellants Balkar Singh, Puran Singh and
Piara Singh
inflicted with their respective weapons blows on Baj Singh, Sohan Singh
P. W. 9 who tried to rescue his brother was also assaulted by Balkar
Singh, Bohar Singh
and Bakshish Singh.
Puran Singh and Piara
Singh arc also alleged to have assaulted Sohan
Singh
with their
weapons.. The victims then fell down on the ground and then the
accused made good their escape. The three injured persons were. reH
moved to the civil hospital at Hoshiarpur but Sulakhan Singh succumbed to his injuries on the way while Baj Singh and Sohan Singh were
admitted in the. hospital.
The F.I.R. was lodged on November 27,
1968 by Baj Singh one of the injured persons on the basis of which
the present case started and after usual investigation a charge-sheet
was submitted against the accused which resulted in their ultimate conv'.ction and sentences as mentioned above.
...,,._
PURAN SINGH v, PUNJAB (Fazal Ali, J.)
The defence of .the appellants was that they had redeemed the
A
mortgage debt and thereafter the mortgagee had himself delivered possession of the land to the appellants some time in 1968, and since
then the appellants were in peaceful possession. of the land and had
grown wheat crop therein.
Dilbagh Singh being c!issatisfied with
his having to part with the posscs~ion of the property filed a false
complaint against the appellants and thereafter tried to take forcible
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possession of the land from the appellants with the show of force.
According to the defence, the prosecution party was also armed with
gun, axe, kirpans and other deadly weapons and the ·accused tried
to resist their being dispossessed and assaulted the prosecution party
p11rely in the exercise of their right of private defence of person and
property.
According to the c!efcnce two persons on their side were
injured one of them Mohan Singh had received gun-shot
injury,
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whereas Ilohar Singh ·bad also received gun-shot injuries.
The High
Court after discussing the evidence appear to have given a finding
in favour of the accusec! so far as the question of possession of the
land is coneen;cd, but in view of the decision of this Court in Munshi
Ram and Others v. Delhi Administration,(!) on its own interpretation, held that as the appellants were not in settled possession of the
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land and were rank trespassers they could not have any right
of
private defence.
Appearing for the appellants Mr. Garg submitted that the High
Court hac! taken an erroneous view of the law and had misinterpreted
the judgment of this Court in Munshi Ram's case · (supra). Before, however, coming to the judgment we would like to extract the
findings of fact arrived at by the High Court on the question of possession which forms the basis of the right of private defence claimed
by the acc11scd.
In this connection the High Court found as follows:
"Certain admissions wrong out from the prosecution
witness in cross-examination, however, do show that about '
one· month or so prior to the occurrence, the vendce-appcllants. had somehow entered upon the disputed land and taken
its physical possession, and had possibly sown wheat crop
in it. .................... .
After some prevarication, witness admitted that on the
dav of occurrence Dilbagh Singh had told him that they
should go and plough the field and take its possession. Witness thereupon took the kulhari from the house of Dilbagh
Singh and proceeded to the place of occmrence with
the
deceased persons.
Sohan Singh does not say a wore! that
they had sowed· or were sowing wheat crop at the time of
occurrence in this field. He stated that at about 5 P .M. they
were busy sowing sarson in the field ............. ..
Dilbagh Singh, P.W. 12, in examination-in-chief stated
that about one month before the occurrence, all the accused,
excepting Bohar Singh and Bal~ar Singh, had cemolishe.d his
kothas in the dispmcd fielc! with the help of the Police ...
(l) [1968] 2 SCR 45S .
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304
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SUPREME COURT REPORTS
[1975] SUPP· s.c.R.
Though in this complaint it is not specifically alleged that
P_uran Singh, Piara Singh etc., had taken forcible
possession ()f the land, yet the same read with the admission made
by P. W. Sohan Singh already referred to
above,
shows
that Dilbagh Singh had been ousted from possession of the
land on the 27th October, 1968, and thereafter the appellants
continued in its actual possession till the occurrence took
place .................. In Rabi J 968, as has been deposed to
by Patwari Bchari Lal, P.W. 14, wheat crop was standing in
the disputed khasra 17 /9 when he inspected the harvest at the
spot in April 7, 1969.
In the visual site-plan, Exhibit PZ, which, accoreing
to AS.I. Kartar Singh, was prepared by him on November
27, 1968, it is mentioned that the field was under wheat
cultivation. It is unfortunate that no question was put to
the AS.I. in cross-examination to show as to what was the
size of the wheat crop.
If at the time of occurrence, sprouted wheat crop was
in the field and if, as has been deposed to by P.W. Sohan
Singh, the complainant party had gone
there armed to
take
back
the
possession
from
the accused
party,
this wheat crop might have been sown by the vendee-appellants some eays prior to the occurrence.
Though the facts
elicited in the cross-examination of the prosecution witnesses
or otherwise brought on record fall short of positive proof
of this wheat crop having been sown by Piara Singh and
Puran Singh appellants, yet the possibility of that being a
fact cannot be ruled out.
Thus, even if the view most favourable to the accused,
of the evidence on record is taken, then also the possession
of the appellants, which commenced about one month prior
to the occurrence, was little better than that of a trespasser.
It is now settled law that even a person nghtfully entitled
to immediate actual possession has no right to oust a trespasser by force if that trespasser is in settled possession of
the lane.
Such a trespasser in established possession is entitled-unless he is rejected in due course of law-to defend
his
possession even against the rightful tenure-holder
or
owner.
This is what was laid down by their Lordships of
the Supreme Court in Munshi Ram v. Delhi Administration
A.I.R. 1968 S.C. 702."
From these findings of the High Court, which arc basee on the
admissions of some of the prosecution witnesses and are corroborated
by the circumstances proved by the prosecution, it is quite clear that
the party of the appellants had undoubtedly tak<;n poss~ssion of_ th~
land in dispute to the knowledge of the complamant D1lbagh Singh
at least a month before the occurrence and had sown wheat crop
on the land in question.
Jn fact this finding is based on very cogent
PURAN SINGH v. PUNJAB (Fazal Ali; J.)
305
material because it woulc! appear that P.W .. Sohan Singh one of the
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eye witp.ess clearly state\! in his evidence that about a mol)th before
,,.
the occurrence Puran Singh and Piara Singb took possession of the
land with the help of the police.
This witness further admitted as
follows :
i J
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> -I
"Dilbagh Singh did tell me that we shonld •go and
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plough the field and take its possession .. I hac! taken the
Kulhari from the house of Dilbagh Singh in .the field."
.
.
.
He further admitted in his evidence that after the kotlzas ~ere
demolished, Dilbagh Singh used to live in the village.
This
also
corroborates the fact that the complainant's party was dispossessed
on October 27, 1968, when the accused hac! taken forcible posses-
. sion of the land and since then the complainant Dilbagh Singh had
started living with Sohan Singh in the village.
Similarly another eye witness P. W. 10 Jagtar Singh admitted that
he did state to the police that the appellant Puran Singh had taken
forcible possession of the land about one month earlier.
P .W. 12 Dilbagh Singh, the complainant himself depose<! that he
had stated before the police that they had sown Sarson as well as
wheat· in the field and when he was confronted with his previous
statement before the police where he had mentioned the fact that
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he and his companions had ploughed the field and were preparing the
furrows or sowing Sarson. The witness further admitted in his eviE
tlence that most of the crop was, however, wheat.
P.W. 14 Bchari Lal, Patwari, has stated that he effected
the
Girdawri on April 7, 1969 and found wheat crop standing in Khasra
No. 16/2 anc! 16/9 which was shown to be in possession of Puran
Singh.
The evidence of this witness fully corroborates the evidence
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of the prosecution witnesses that the accused party had dispossessed
the complainant from the land in dispute as far back as October 27,
1968 which led to the filing of the complairlt by Dilbagh Singh and
thereafter it was the accused party and not the prosecution party
which hacl sown wheat crop on the land.
·
Finally, even in the F.1.R. it appears that the informaat
had
G
admitted in categorical terms that the accused Piara Singh and Puran
Singh had taken forcible possession of the land.
This· statement
runs thus :
"Dilbagh Singh had been in possession of this land, bl1t
some days after the Dewali, Piara Singh anc! Puran Singh
took forcible possession of this land. Now, some days ago,
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both the above mentioned cases were decided in favonr of
Dilbagh Singh.
So, yesterday the 26th November, 1968 at
about 4 P.M., Dilbagh Singh along with his brother Gurbachan Singh, having taken myself (Baj Singh) and both
of my brothers Sulakhan Singh and Sohan Singh with him,
ploughed this land."
'
306
SUPREME COURT REPORTS
[1975] SUPP· s,c.R.
A
On a consic!cration of the admissions of the prosecution witnesses
a_nd the findings arrived at by the High Court, the following propositions of fact emerge:
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( 1) That although the accused
had purchased the
equity of redemption, yet there is no reliable evidcJ1.ce to
show that they had paid off the mortgage debt and taken
possession from the mortgagee in spite of the fact that mutation was sanctionccl in favour of the appellants in 1967.
The High Court has rightly pointed out that if the appellants party had taken possession as far back as in 1967
there would be no occasion for them to file a civil suit for
possession on October 4, 1967 against the mortgagee, Dilbagh
Singh and others;
(2) That on October 27, 1968
the appellants undoubtedly entered the field and took forcible possession of
the land from the complainants who were unable to resist
the entry of the accused as a result of which Dilbagh Singh
filed a complaint on Oct.ober 30, 1968. It is not necessary
for us to say anything regan.!ing the allegation about demolishing of the Kothas;
( 3) The complainant knew
fully well that he had
been dispossessed by the appellants at least a month before
the occurrence and that the appellants hacl sown wheat crop
and in spite of his knowledge he deliberately went there
with the avowed object of taking forcible possession
from
the appdlants;
( 4) That on the date of ocel!rrence the prosecution
party undoubtedly went to the field armed with the gun
and axe. It would appear from the injuries on Bahar Slngh
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ancl Mohan Singh on the side of the accused that the present occurrence took place as a result of mutual fight over
the land; and
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( 5) that although the defence has proved beyond reasonable doubt that both Mohan Singh and Bahar Singh had
re<;eived injuries on their person, the prosecution has given
no explanation for the same.
The question that arises for consideration is whether in view
of these findings of fact it can be said that the accused had no
right of private defence or that the prosecution party in entering
upon the land was protected by the right of private. defence of property.
This brings us to the consideration of the decision of this
Court-Munshi Ram and Others v.
Delhi Administration(') on
H
which great reliance has been placed by the High Court,· where this
Court obscrv·od as follows:
"It is true that no one including the true owner ha~
a right to dispossess the trespasser by force if the trespasser
----·------------
(I) [1968! 2 s:c.R. 455.
)
PURAN.SINGll v. PUNJAB (Fazil Ali, .T.)
is in settled possession of the land and in such a case unlesi
he is evicted in due co11rse of law, he is entitlecl to defend
his possession even against the rightful owner.
But strai: or
even intermittent acts of trespass do not give ~uch a nght
against the true owner.
The possession which a trespasser
is entitled to defend against the rightful owner must be a
settled possession extending over a sufficiently long period
and acquiesced in by the true owner.
A
casual act of
possession woulcl not have .the
effect of interrupting the
possession of the rightful own~r. · The rightful owner may
re-enter and reinstate himself provided he docs not use more
force than necessary.
Such entry will be 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 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 nece>sary force."
In this case there was a concurrent finding of fact that Jamuna
was in effective possession of the field on the date of occurrence and
the prosecution hac! alleged that P.Ws 17 and 19 had taken possession of the property but the finding of the Court was that P.Ws 17
and 19 had not been put in possession by virtue of the delivery of
possession given by the Court. lt was against this context that the
observations referred to above were made.
This
Court
clearly
pointed out that where a trespasser was in settled possession of the
land he is not entitled to be evicted except in due course of law
anc! be is further entitled to resist or defend his possession
even
against the rightful owner who tries to dispossess him.
The only
condition laid down by this Court was that the possession of the
trespasser must be settled possession. The Court explained
that the
settled possession must be extended over a sufficiently Jong period
anc! acquiesced in by the true owner.
This particular expression
has persuacled the High . Court to hold that since the possession of
the appellants party in this case was only a month old, it cannot
be deemed to be a settled possession.
We, however, think that this
is not what this Court meant in defining the nature of the settled
possession. -It is indeed difficult to Jay down any hard and fast rule
as to when the possession of a trespasser can mature into a settled
possession.
Bllt what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment.
For
instance a stray or a casual act of possession would not amount to
settled possession.
There is no special charm or magic in the word
'settled possession' nor is it a ritualistic formula which can be con·
fined in a strait jacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the
right under the criminal law to cle!end his property against attack
even by the true owner. Similarly an occupation of the property
by a person as an agent or a servant at the instance of the owner
will not amount to actual physical possession.
Thus in our. opinion
the nature of possession in such cases which ma~ entitle a trespasser
307
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A to ·exercise the right of private
defence of property and
person
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should contain the following attributes:
,
(i) . that the trespasser must be in actual physical possession of property over a sufficiently long period; .
(ii) that the possession must be to the knowledge either
express or implied of the owner or without any attempt at
concealment and which contains an
clement
of animus
prossendie. The nature of possession
of
the
trespasser
would however be a matter to be decic!ed on facts and circumstances of each case ;
(iii) the process of dispossession of the true owner by
the trespasser must be complete and final ancl must be acquiesced iu by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land,
would be whether or not the trespasser, after having taken
p0ssession, had grown any crop. If the crop had been
grown .by the trespasser, then even the true owner has· no
right to destroy the crop grown by the trespasser and take
forcible possession, in which case the trespasser will have
a right of private defence ancl the true owner will have nci
right of .private defence ..
These principles logically flow from a long catena of cases decided by this Court as well as other High Courts some of which have
·been referred to in the judgment of this Court in Munshi
Ram's
case (supra).
In the case of Horam and others v. Rex(') which
was
relied
upon by this Court in Munshi Ram's case (supra) a Division Bench
of the Allahabad High Court observed as follows:
"Where a trespasser enters upon the land of another,
the person in whom the right of posse;sion is vestecl,. while
the trespasser is in the process of acquiring possession, may
turn the trespasser out of the land by force and if in doing
so he inflicts such injuries on the trespasser as are warranted·.
by the situation, he commits no offence.
His action would
be covered by the principle of self-defence embodied in
Ss. 96 to 105, Penal Code.
If, on the other hand, the
trespasser hacl already accomplished or completed his possession and the person with the right of possession has acquiesced in this accomplishment, it is not open to the latter
to avail himself of the doctrine of self-defence and by inflicting injuries on the trespasser to re-acquire possession of
his land."
It may be noted that in this case the accused hacl remained in
possession for ten days and had sown the field and this was held
to be sufficient possession to enable the trespasser to resist the entry
of the true owner.
In fact this case appears to be on all fours .with
(')_A.l.R. 1949 All. 564,567.
•
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PURAN SINGH v. PUl<JAB (Fazal Ali, J.)
309
the factFot the present· case where also the appellants party after
A
having taken possession of the land in dispute a· montli before the
occurrence had· grown· wheat crop on it ano the complainant party
tried to re-enter the land 'and destroy the crop grown by the accused.
'
Anoth'e~ decision to which reference. has ·been made by this Court
B
in Munshi Ram's case (supra) is Sangappa and others v. State('),
where a Division Bench of the Hyderabad High Court observeo as
follows:
·
"If somebody enters on his land d4ring his absence 'and.
he does not acquiesce in the trespass, he would still retain
possession of the land and as the possessor of the land, he
c
is entitleo to that p~ssession ..... , .............................. .
If a· person a~quie~¢es in his dispossession and $ubsequcnt!y
under c~aim of title comes agaill to dispossess h_is opponents
·then he· aitd his friends would be members of un!aiV:ful assembly:" · ·
·
·
.This case also fully covers th~ facts of the present case
which
falls' under the seconp category laid down by the ~ourt.
.
_.,•
'
)
.
· · A similar view was taken in In .re. Mooka Nadar and others (2),
where H6rwill, J., observed as follows :
D
"It seems to be true ·that the party of P.W.2 were on
E
the field first on the morning on which this offence happened; but that does not n'Ccessarily mean that they were
then in possesion of the field.
A person doe~ not lose
possession of the field by going home to have a meal; or
to sleep. If somebody enters on his land <luting his
absence and he c!oes 'not acquiesce in the trespass, he would
F
still retaih possession of the land; and as the possessor of
the· !and he is entitled to defend that possession ............. ..
If a person acquiesces in his dispossession and subsequently
under claim of title comes again to dispossess his opponents,
then he and his frienos would. be members of an unlawful
assembly and guilty of rioting."
These were the cases referred to in the judgment of this Court
in Munshi Ram's case (supra) and it would appear frpm all these cases
that the case of the appellants is fully covered by these decisions.
Apart from that in the case of Hazara Singh and other~ v. The Sta(e(')
it was held that the accused was protected by the nght of 11.nvate
<!~fence having cultivated and sown Bajra in the field.
In this connection, Chopra, J., observed as follows:
.
"When once Resbam Singh had taken possession . of,
cultivated and sown bajra in the field and bad remamed
(1) I.L.R. (1955) Hyd. 406.
(2) A.LR. (1943) Mad. 590.
(3) AJ.R. (1959) Funja b 570.
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in possession of it for a couple of months, Hazara Singh
even though hi: was the owner was not entitled to take the
law into his own hands and use force in ousting the trespasser. He had ample time to have recourse to the protection
of public authorities.
He was himself liable" for committing criminal trespass and mischief by taking forcible possession of the land and uprooting the crop and would not
therefore be entitled to the right of private defence of property."
The learned Judge relied on two judgments one of the AllahabaC:
High Court in Bhariu v. State(') and
the other of Lahore High
Court in Phu la Singh v. Emperor(').
In view of these decisions it is, therefore, manifest that
the
finding of the High Court on the facts of the present case that the
appellants were not in settled possession of the land is legally erroneous and cannot be allowed to stand.
The ratio of the juc!gment
of this Court in Munshi Ram's case (supra) has not been correctly
D
applied by the High Court.
The second point that falls for determination is as to what is
the extent of right of private defence which the accused can claim
in this case? In this connection, the High Court has given a finding
that since the prosecution party had entered the land" in possession
of the aceuseo and were trying to plough it, the appellants
should
"E
have taken recourse to the public authorities instead of indulging in
free fight with the prosecution~ In other words, the High Court
fotmd that the right of private defence available to the accused was
under .the limitations provided for in Ss. 99 to 102 of the Indian
Penal Code and these limitations apply to the facts of the present
case, ano the accused cannot claim any right of private defence.
F"
With respect we find ourselves unable to agree with this somewhat
broad statement of the Jaw. It is true that the right of private
defence of person or property is to be exercised under the following
limitations:
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0) that if there is sufficient time for recourse to the
public authorities the right is not available;
(ii) that more harm than necessary
should
not be
caused;
(iii) that there must be a reasonable apprehension of
death or of grievous hurt to the person or damage to the
property concerned.
·
The fast limitation obviously does not apply to this ca5e.
In
the first place the accused after having dispossessed the complainant
to his knowledoc were in conscious and peaceful possession of the
land and had grown wheat crop therein.
The complainant had already filed a complaint and thereafter it was not" open ' to
the
(!) A.I.R 1954 All. 35= 1954 Cr. L.J" 54"
(2) kLR. 1927 Lah. 705=28 Cl'" L.J. 848"
•
!'URAN SINGH v. PUNJAB (Fazal Ali, J.)
complainant to take the Jaw in his own hands and to try to disposses the
accused by show of force. That the complainant had entered the land in
question along with other persons variously armed with gandasis and a
gun cannot be disputed, because this is the finding of the Court which
is supported by the ·injuries on the person ot Mohan Singh
and
Bohar Singh for . which the prosecution
has given no explanation
whatsoever.
It is not the Jaw that a person when callee! upon to
face an assault must run away to the police station and not protect
himself or when his property has been the subject-matter of trespass
and mischief he shou(d allow the aggressor to take possession of the
property while he should run to the public authorities.
Where there
is an attrib1c1te of invasion or aggression on the property by a person
who has no right to possession, then there is obviously no room to
have recourse to the public authorities and the accused has
the
undoubted right to resist the attack and use even force if necessary.
The right of private defence of property or person, where
there is real apprehension that the aggressor might cause death or
grievous huh to the victim, coulcl extend to the causing of death also,
and it is not necessary that death or grievous hurt should actually
be caused before the right could be exercised.
A mere reasonable
apprehension is enough to put the right of private defence
into
operation. We are fortified in this view by the decision of
this
Court in Jai Dev v. The State of Punjab (1) where this Court observed
as follows:
"This, however, does not mean that a person sudi'enly
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 Ofl his property.
In other words, where an individual citizen or his property is faced with a i'anger and
immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself
and his properly ................. .
311
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There can be no doubt that in. judging the conduct of
a person who proves that he hacl a right of private defence,
allowance has necessarily to be made for his feelings at the
relevant time.
He is faced with an assault which causes a ·
reasonable apprehension of death or grievous hurt and that
inevitably creates in his mind some excitement and confuG
sion. At such a moment, the uppermost feeling in his mind
would be to ward off the danger and to save himself or
his property, and so, he would naturally be anxious to
strike a decisive blow in exercise of his right."
In this very case, while adverting to the question as to whether
the force used should not be more than what is necessary, the Court
H
observed:
"But in dealing with the question as to whether more
force is used than is necessary or than was justified by the
(1) [19631 3 $.C.R.