FRANCIS DSOUZA Vs. EDWARD A L GAMEIRO

JUDGEMENT

(1.) This revision application has been filed against the conviction of the petitioner of the offence of wrongful restraint under S. 341, I. P. Code, and the further order of the learned Presidency Magistrate under S. 522, Criminal Procedure Code, requiring the possession of the premises in dispute to be restored to the complainant in the case. (After stating the facts and holding that the conviction of the petitioner under S. 341, I. P. C. was justified, his Lordship proceeded.) Mr. Neemachwala then argued that the learned Presidency Magistrate erred in law in passing an order under S. 522, Criminal ProcedureCode, for the restoration of possession of the premises to the complainant. In order to appreciate the arguments of Mr. Neemchawala the terms of S. 522 (1) may be set out :

(2.) The question which is not so easy to decide is whether the complainant was dispossessed of his room by the show of force employed by the petitioner. The complainant had locked and left the room on 16-1-1958, and come to know for the first time on 22-2-1958 that the petitioner had broken open the lock and occupied the room. The offence of wrongful restraint took place the next day, I. e., on 23-2-1958. Mr. Neemchwala urged that the complainant must have been dispossessed some time between 16-1-1958 and 22-2-1958, and not when he tried to enter the room on 23-2-1958, so that his dispossession was not brought about by the wrongful restraint at the hands of the petitioner on 23-2-1958. I do not think that Mr. Neemchwala is right in this contention. A person in juridical possession of any immoveable property cannot be rightly said to be dispossessed as soon as a trespasser occupies that property. When a trespasser enters into the property in the absence of the person in possession, the latter, when he comes to know of the trespass, has still the right without recourse to a court of law to try to secure possession back from the trespasser. In other words, a trespasser cannot merely by the act of trespass constitute himself into a person in possession. If, however, the person in juridical possession, after his physical dispossession, allows a sufficiently long time to pass or adopts some course such as instituting a legal action, from which an inference arises that he has mentally relinguished the possession which he had physically lost, then he can properly be held to be dispossessed. In the present case the complainant came to know of the trespass of the petitioner on 22-2-1958 and immediately on the next day he tried to enter the room as he was in law entitled to do. It cannot, therefore, be said that he was dispossessed earlier than on the occasion when the offence of wrongful restraint was committed.

(3.) A similar view was taken by a Division Bench of the Allahabad High Court in Mahabir v. Rex, AIR 1949 All 228. In that case Mr. Justice Wanchoo delivering the judgment of the Court observed :