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Criminal Appeal No. 966 of 1958, decided ors 19th October 1959.
Tenant holding over‑Landlord has no right to re‑enter land or premises unless tenancy determined through due process of law‑Penal Code (XLV of 1860), Ss. 97 (secondly) and 100.
If a tenant is holding over, he has a right to retain possession of the land or premises occupied by him and he cannot be ejected by force but only by due process of law. The landlord has no right to re‑enter unless the tenancy is so determined. Where possession from a tenant holding over is being taken by force, the tenant has a right to defend the act of trespass by using necessary force under section 97 (secondly) of the Penal Code and when he is attacked he has a right under section 100 of the Penal Code to defend his person.
King‑Emperor v. Haji Ghulam Mahomed Azam I L R 43 Bom. 531 rel.
Rafiq Ahmad Sheikh for Appellant.
Sh. Mazharul Haq for A. G. for Respondent.
Date of hearing: 19th October. 1959.
Khushi son of Dina, his son Ibrahim and Khushi, Rahmat and Shafi, sons of Jalal, were tried by the learned Additional Sessions Judge, Lahore, under sections 148, 302/149, 325/149 and 323/149 of the Pakistan Penal Code, the allegations against them being that on the 11th of April 1958, they had formed an unlawful assembly at Chah Lohewala and in the prosecution of the common object of that assembly had murdered Muhammad Din and had caused injuries to Ghulam Muhammad and Aziz P. Ws. The learned Additional Sessions Judge convicted them under sections 325 and 323 of the Pakistan Penal Code and sentenced each one of them to seven years' rigorous imprisonment on the former charge and to six months rigorous imprisonment on the latter charge, the sentences to run concurrently. The convicts have appealed to this Court against their convictions and sentences.
2. The parties are refugees and have settled in village Virke Kohna, District Lahore. Waryam (P. W. 8) had been allotted 19 killas of land including the land comprised in Khasra No. 137, Before the allotment to Waryam P. W., however, eight killas of this land were in possession of Khushi, Rahmat and Shafi appellants, who are brothers. Waryam P. W., got possession of five killas of the land from Khushi son of Jalal and his brothers, but as a result of the intervention of the Panchayat he allowed them to remain in possession of the other three killas of land, including Kbasra No. 137. The tenancy commenced in Rabi 1957.
3. On the eventful day, i.e., the 11th of April 1958, Muhammad Din deceased, son of Waryam P. W., went to Khasra No. 137 and began to plough it. The appellants protested and prevented him from ploughing the land. This led to an altercation and exchange of blows in which Muhammad Din deceased, Ghulam Muhammad (P. W 10) and Aziz (P. W. 11) received injuries. All the appellants too received injuries in the incident under con sideration,
4. Muhammad Din was removed in an injured condition to Civil Hospital, Chunian. Dr. Fazal Ahmad (P. W. 1) examined Muhammad Din and found two contused wounds, five contusions and an abrasion on his body. The doctor sent a ruqqa to the S. H. O. Police Station Chunian informing him that Muhammad Din had been admitted to the hospital in an injured condition. On the receipt of this ruqqa, the Sub‑Inspector went to the Civil Hospital and after satisfying himself that Ghulam Muhammad P. W. was in a fit condition to make a statement, recorded his statement Exh. P. K. He sent a copy of it to the police station for the formal registration of a case. Muhammad Din died in the hospital at 6‑20 p.m. The Sub‑Inspector prepared his inquest report and dispatched the dead body to the mortuary for post‑mortem examination.
5. Doctor Fazal Ahmad (P. W. 1), who conducted the post‑mortem examination on the body of Muhammad Din, on the 12th of April 1958, observed two contused wounds, five contusions and an abrasion thereon. Death, in the opinion of the doctor, was due to concussion and compression of the brain, resulting from injuries Nos. 1 and 2 to the head. The doctor was of the opinion that the injuries were sufficient in the ordinary course of nature to cause death.
6. The same doctor, on the same day, examined the following persons and observed we injuries noted under their names :‑
(1) Ghulam Muhammad (P. W. 10):
Two abrasions, both simple and caused with a blunt weapon.
(2) Aziz (P. W. 11)
A contused wound, four contusions and two abrasions. Two of the injuries were grievous in nature and the rest were simple. All the injuries had been caused with a blunt weapon.
7. On the 13th of April 1958, the same doctor examined the appellants and observed the injuries noted under their names :‑
Ibrahim:
A contused wound and two contusion marks, both caused with a blunt weapon. The contused wound was simple and the contusion marks grievous.
Khushi Muhammad son of Dina:
A superficial contused wound, simple in character, and caused with a blunt weapon.
Rahmat:
Two contused wounds and three abrasions, all simple and caused with a blunt weapon.
Shafi:
Two contused wounds, one being grievous ; both cause with a blunt weapon.
Khushi Muhammad son of Jalal
Three contused wounds, an abrasion, and a swelling ; all simple and caused with a blunt weapon.
8. All the appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Khushi son of Dina appellant made the following statement at the trial :‑
"I, accompanied by my son Ibrahim, went to the field where Muhammad Din deceased, Karim, Ghulam, Aziz and Waryam were present and Muhammad Din was ploughing the field. I asked them not to take possession of the land forcibly but that they should get me ejected first through legal process at which Waryam exhorted his sons make an attack upon me and my sons. They caused us injuries and we also caused them injuries. Muhammad Shafi, Rahmat and Khushi Muhammad, who were reaping their wheat crop nearby came to our help and they also received injuries."
9. The first question to be determined is as to who was in possession of Khasra No. 07. Bashir Ahmad Patwari (P. W. 5) stated at the trial :‑
"In Kharif 1951 and Rabi 1958 this entire number khasra was in the cultivating possession of Khushi Muhammad accused son of Din. He had sown wheat and gram in Rabi 1958."
As regards the possession of Khasra No. 137, on the day of the occurrence, the learned Additional Sessions Judge has observed :‑
I must hold that Khushi was in occupation of this khasra number from Kharif 1957 to Rabi 1958, in his own right. It therefore follows that Khushi son of Dina accused was in lawful possession of Khasra No. 137 at the time of occurrence."
I have considered the evidence on the, record. In my opinion, the evidence of the Patwari leaves no room for doubt that Khasra No. 137 was in possession of Khushi son of Dina (appellant) on the day of the occurrence. I now proceed to consider the case in the light of this observation.
10. Bashir Ahmad (P. W. 13) made the following statement at the trial :‑--
"I saw Muhammad Din deceased ploughing the field which had been vacated by Khushi son of Dina accused. Khushi Muhammad and his son Ibrahim went there and stopped the plough. They were armed with lathis. Thereupon Ghulam and Aziz P. Ws, came to the spot. After them Shafi, Khushi and Rahmat accused, sons of Jalal Din, came to the place of occurrence. Then an altercation started between the parties and later they came to blows and beat each other with their respective weapons."
I have no hesitation in accepting the statement of Bashir Ahmad (P. W. 13). If this statement is accepted, it means that Muhammad Din deceased was a trespasser as he went and began to plough the land which was in possession of Khushi son of Dina appellant. Muhammad Din had no right to do so. It is l a well‑settled principle of law that if a tenant is holding over, al landlord is not allowed to go and take possession of the land or premises by force. His only remedy lies in taking possession through process of law. The tenant has a right to retain possession of the land or premises occupied by him, and cannot be ejected by force but only by due process of law. The landlord has no right to re‑enter unless the tenancy is so determined. This view is supported by King‑Emperor v. Haji Ghulam Mahomed Azam (I L R 43 Bom. 531). In that case the landlord had prevented a tenant who was holding over from entering the demised premises. The land lord was convicted of wrongful restraint. On revision, the High Court held that the accused was rightly convicted inasmuch as the tenant holding over had a position recognized by law and had a right to retain possession of the premises he occupied even against the landlord himself until dispossessed in due course of law. In view of the evidence on the record, I have held that Muhammad Din deceased attempted to take forcible possession of Khasra No. 137 and as such was a trespasser. In the circumstances Khushi son of Dina, who was in lawful possession of Khasra No. 137, had a right to defend the act of trespassing by using necessary force under clause (secondly) of section 97 of the Pakistan Penal Code. When he was attacked he had a right under section 100 of the Pakistan Penal Code to defend his person.
11. I have gone through the evidence of the medical officer, Dr. Fazal Ahmad P. W. In view of the number and nature of the injuries, it cannot be said that the appellants exceeded the right of self‑defence.
12. For the reasons stated above, I accept the appeal, set aside the convictions and sentences of the appellants, and acquit them. They shall be released forthwith if not required to be detained in connection with any other case.
K.B.A. Appeal accepted.
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