P L D 1953 Lahore 557 (PLP)

MUHAMMAD MUNIR, C. J.‑--Khurshid and his maternal uncles, Muhammad Din and Hakim, were tried by the learned Sessions Judge of Shahpur on charges of criminal trespass, causing hurt and murder. They were convicted under section 447 of the Penal Code and sentenced to three months' rigorous imprisonment. Khurshid was also convicted under section 302 of the same Code and sentenced to death. Muhammad Din and Hakim were further sentenced to three years' imprisonment under section 325 of the same Code. All three have appealed. Squares Nos. 19 and 28 in Chak No. 86 N. B., the District of Sargodha were held by Hira in grant on horse‑breeding condi tions. The grantee died sometime before the Partition and the grant was mutated in name of his eldest son, Muhammad Hussain Killas Nos. 2 to 9, 12 to 19, 22 and 23 of square No. 19 and Killas Nos. 1 and 2 of square No. 28 were in the possession of Barkat, brother of Muhammad Hussain as a tenant. On the day of the incident, Killas Nos. 9, 12, 14, 15 min, 19 and 22 of square No. 19 and Killas Nos. 1 and 2 of square No. 28 were under crops. Khurshid appellant is the son of Barkat, and Muhammad Akbar deceased and Muhammad Ghani P. W. were the sons of Muhammad Hussain. On 6th October 1951, Muhammad Hussain applied to the Naib‑Tahsildar, who had the powers of an Assistant Collector of the Second Grade, under section 3 of the Protection and Restoration of Tenancy Rights Act, Punjab Act XIII of 1950, for the ejectment of Barkat, The Assistant Collector, by his order dated 15th March 195', directed Barkat to pay the landlord's share of the produce to Muhammad Hussain within a week and ordered his ejectment, if he failed to do so. As the share in the produce was not paid. Muhammad Hussain applied to the Naib‑Tehsildar for execution of the order of ejectment. The Naib‑Tahsildar thought that, by virtue of Government's letter dated 17th March 1952, the order of eject ment could not be executed and, therefore, refused to put Muhammad Hussain in possession. Muhammad Hussain approached the Collector who held the letter referred to by the Naib‑Tahsildar did not apply to decided cases and directed the Naib‑Tahsildar to execute the order. Under the practice that prevailed in those days, the Naib‑Tahsildar forwarded the proceedings to the Tahsildar, who held the powers of an Assistant Collector of the Second Grade, to issue a warrant of ejectment. The Tahsildar received the Naib‑Tahsildar's reference on 12th June 1952 and on the same day issued a warrant for delivery of possession of the land to Muhammad Hussain. This Warrant was sent for execution to Nazar Muhammad Girdawar who issued a parwana requiring the Patwari, the Lambardar and the parties to be present on the morning of the following day when the warrant was to be executed. I he Patwari informed the persons concerned and on the morning of 14th June in the presence of Muhammad Aslam Lambardar and the Patwari actual possession of the land that lay follow and symbolical possession of the land under crops was given to Muhammad Hussain. Barkat was not present at these proceedings but Khurshid appellant was, and he refused to sign the report relating to the delivery of possession. Necessary entries regarding the pro ceedings taken were made by the Girdawar and the Patwari in their respective roznamchas and the warrant was reported as having been executed. It appears that during the night Muhammad Hussain received information that any attempt on his part to plough the land, of which possession had been given, would be resisted by Barkat and his relatives. He, therefore, left for the police station early in the morning and at 5‑30 a.m. made a report at Police Station Sadar, Sargodha that Barkat and his son Khurshid and other relatives of theirs were making preparations forcibly to take possession of the land of which possession had been delivered to the informant and that there was an immediate apprehension of the breach of peace. On this report Malik Umar Khan, S.H.O., directed A. S. I. Ghulam Ahmad to go to the village to take necessary measures to prevent a riot. Accompanied by some foot constables, Ghulam Ahmad set out for the village, but when he was just outside the village abadi, he found that the fights had finished and Muhammad Akbar, who had been badly injured was being taken to the police station on a charpoy by Muhammad Ghani, who was also injured, and some other persons. The Assistant Sub‑Inspector recorded Muhammad Ghani's statement and examined his and Muhammad Akbar's injuries and sent both of them to the hospital with Mushtaq Ahmad Foot Constable. He also gave a copy of Muhammad Ghani's statement to Mushtaq Ahmad directing him to have it entered as a first infor mation report in the case. The police station is at a distance of three and a half miles from the place of occurrence and Muhammad Ghani's statement was entered in the register of first information reports at 7‑30 a.m. After Muhammad Hussain had left for the police station, Muhammad Akbar and his brother Muhammad Ghani took two ploughs to Killa No. 6 in square No. 19 to turn up the soil, They had hardly taken 213 rounds when Khurshid, Muhammad Din and Hakim came on the scene, armed with sticks, and de manded Akbar and his brother to take their ploughs off the land. Akbar and Muhammad Ghani said that they had been put in possession of the land according to law and that they would, therefore, plough the land, Khurshid and his companions rep lied that in that case they will have to kill. Akbar still insisted on ploughing the land, whereupon Khurshid gave him a terrific blow on the head dropping him on the ground. Hakim and Muhammad Din also beat the fallen man with sticks. When Muhammad Ghani advanced to the help of his brother, he was also assaulted by the three appellants. Muhammad Ghani took up a hatchet, which was lying close by, and caused some injuries to Khurshid in defending himself. The whole incident was seen by Barkat and Rahmat, who were going along a road that passes to the north of square No.

19. Muhammad Akbar was taken to the hospital and died on 22nd June in consequence of the injuries. His post‑mortem examination by Dr. Haji Ghulam Hussain disclosed that he had the following injuries:‑ (1) A faint contusion, 1" x 2" on the back of the right shoulder. (2) A healing wound, deep into the bone, on the right side of the head about 5" from the ear. There was a depression on the left side on the head 5" x " along the parietal bone longitudinally. On dissection, it was found that there was a blood clot about 4 oz. underneath the skull and that there was an irregular depressed fracture spreading over the parietal and the frontal bones, which were broken into 17 pieces. Another clot was noticed under the membranes of the brain and the fracture was found to extend to both the frontal fosse of the base of skull. The death was due to injury No. 2 which had fractured the vault and the base of the skull. It may be mentioned that Akbar had also been examined by Dr. Muhammad Zakria on 15th June when he was taken to the police station and the same two injuries were found on his person. The doctor had also examined Muhammad Ghani and found six injuries on him, all caused with blunt weapons, includ ing one which was a teeth bite. Khurshid appellant had been examined on the same date and was found to have one incised wound on the head, with the underneath bone cut, and three contused wounds, one of them being on the head. He had also an abrasion on the outer side of the left knee. The contused wound of the head was grievous. In his statement before the Committing Magistrate, Khurshid denied that he had caused any injury to Akbar but he admitted that he had beaten Muhammad Ghani because the latter had given him two blows with a hatchet. He also denied having committed any criminal trespass and pleaded that his father had never been legally ejected from the land. Muhammad Din and Hakim denied having taken any part in the fight and attributed their implication in the case to the land dispute between Barkat and Muhammad Hussain. No defence evidence was produced. There is not the slightest reason to doubt the prosecution evidence that Akbar and Muhammad Ghani were both attacked when they were engaged in ploughing the land of which posses sion had been delivered to their father Muhammad Hussain on the previous day. There can further be no doubt that the attack on them was by the three appellants and that the fatal blow to Akbar was given by Khurshid. The occurrence took place just before sunrise and the report was made without any delay whatsoever, as is clear from the fact that Muhammad Ghani's statement, which was recorded by A. S. I. Ghulam Ahmad, almost on the spot, was entered in the records of the police station at 7‑30 a. m. In that report, the whole incident was described as it had been repeated by him at the trial. He mentioned in his report that the blow on the head of Akbar which immediately felled him on the ground was given by Khurshid and that he himself was beaten by aii the three appellants when he advanced to the help of his brother. He also, admitted in that statement that he had given some blows with a hatchet to Khurshid. The medical evidence corro borates him in all these material respects. The mortal wound was on the head of Akbar; Muhammad Ghani himself had several injuries; and some in, uries, including an incised wound, were found on the person of Khurshid. The two eye‑witnesses Barkat and Rehmat were both mentioned as having witnessed the attack and both of them have given the same account of the occurrence as Muhammad Ghani. They are completely disinterested, except that Rehmat, after the incident, was bound over against the appellants' party. Corroboration of the prosecution case is also to be found in the statement of Muhammad Hussain who states that after the delivery of posses sion he heard Barkat and Muhammad Din conspiring forcibly to take possession of the land, and Muhammad Hussain is himself corroborated by the report Exh. P. N. which he made at the police station at 5 o'clock on the day of the incident alleging that Barkat Ali, Khurshid and their relatives had been making preparations during the night to re‑enter on the land. We are, therefore, quite satisfied that the events occurred as deposed to by the three eye‑witnesses. Learned counsel, however, contends that the proceedings for the delivery of possession of the land were without jurisdiction with the result that in law Khurshid's father was still in possession and Akbar deceased and his brother Mohammad Ghani had no right to plough the land and that any resistance on their part, by use of force, to avoid their expulsion from the land gave to the three appellants a right of self‑defence. The alleged invalidity of the proceedings for the delivery of possession is sought to be based on two grounds. In the first place it is urged that since the order of the Naib‑Tahsildar, dated 15th March 1952, was conditional on the determination of arrears of produce in another suit which had been filed in the Court of Collector, and no such determination has been proved, no warrant for dispossession of Barkat could issue. There is no force in this contention because the petition for ejectment of Barkat was found on the allegation that he was refusing to pay the batai and was, therefore, liable to ejectment. Under section 3 of the Punjab Protection and Restoration of Tenancy Rights Act, 1950 a tenant is liable to ejectment if he fails to pay the rent in accordance with the terms of the tenancy. Muhammad Hussain had alleged in the petition that Barkat defendant had not only not paid the rent but was also denying his liability to pay. On proof of his omission to pay the rent, the defendant was undoubtedly liable to ejectment. It appears, however, that Muhammad Hussain had instituted another suit in the Court of the Collector for recovery of arrears of rent from Barkat. This suit was pending when the Naib‑Tahsildar decreed ejectment on 15th March 1952. In his order the Naib -Tahsildar incidentally referred to that suit and said that the arrears of rent would be determined by the Court in which that suit was pending, but so far as payment of the produce of the current crop was concerned he ordered that the defendant would have a week to pay and that if he made no payment he would be ejected. The translation of this judgment at pages 15 and 16 of the paper‑book is not correct and a perusal of the Urdu copy leaves no room for doubt as to the proper construction of that document. The Naib‑Tahsildar made it clear that a claim for ejectment could succeed only on proof of non‑payment of rent, that since the defendant was denying his liability to pay it could be held that he had made no payment, that a claim for arrears of rent was pending in another Court and that since the parties were related to each other an opportunity to the defendant to pay the produce of the current crops was expedient. He, therefore, ordered that the defendant was to make payment of the produce of the current crops within one week and that if he omitted to take advantage of this offer, he would be ejected from the land. We cannot, therefore, agree with the argument of the learned counsel for the appellants that ejectment of the defendant was conditional on the determination of arrears of produce by the Collector in the suit that was pending before him. The order expressly states that arrears were to be determined by the Collector and that the defendant was to be ejected, if he omitted to pay the landlord's share in the produce of the current crop. It is not alleged that any payment was made by Barkat and if no such payment was made the order of ejectment became operative and it could be executed by taking appropriate proceedings for the purpose. Muhammad Hussain applied in the first instance to the Naib -Tahsildar for the delivery of possession. After some proceedings, which have been described, he sent the application for execution of the Tahsildar, and it was the latter officer who issued the warrant which was executed on 14th June. The further point taken by the learned counsel for the appellants is that in the circumstances of the case the Tahsildar had no jurisdiction to issue the warrant for possession. Under section 8 of the Act of 1950, the Provincial Government can make rules for regulating the procedure of Revenue Officers under that Act and the rules can provide, among other matters, for the mode of enforcing orders of ejectment from, and delivery of possession of, land under rule 9 (1) of the rules framed by the Provincial Government in exercise of the powers given to that Government by section 8 of the Act orders of ejectment from and delivery of possession of tenancy shall be enforced in the manner provided in the Code of Civil Procedure for the execution of decrees whereby the Civil Court has ordered ejectment from or delivery of possession of such property. The point sought to be made on behalf of the appellants is that since the provisions of the Code of Civil Procedure relating to execution of decree apply to orders of ejectment, the order of ejectment in the present case could only be executed by the Court which made the order, namely, the Naib‑Tahsildar, and not by any other Court, unless the order of ejectment could validly be sent for execution to the latter under the Code of Civil Procedure. Section 38 of the Code of Civil Procedure makes a decree executable by the Court which passed the decree or by the Court to which it is sent for execution. Section 59 enumerates the cases in which a decree may be sent for execution to another Court. It contemplates two distinct classes of cases, (1) where the decree sought to be executed is transferred on the application of the decree -holder and (2) where the Court sends a decree for execution to another Court of its own motion. In the latter case the decree can only be sent for execution to a subordinate Court. It is, therefore, argued that because the Tahsildar is not a Court subordinate to the Naib‑Tahsildar, the latter could not of his own motion send the order of ejectment for execution to the former. Clause (d) of subsection (1) of section 39 of the Code empowers the Court which passed the decree to send it for execution to another Court for any other reason in writing other than those mentioned in clauses (a), (b) and (c). But such a step can be taken by the Court only "on the application of the decree -holder" and it is urged that in the present case there was no application by the decree‑holder for the transfer of the order of ejectment. We have already pointed out that at the time when the present order was sought to be executed, there was some confusion about the authority which was competent to execute such orders. The Naib‑Tahsildar thought that he had no jurisdiction and therefore passed op. the order for execution to the Tahsildar. The Tahsildar in his evidence has stated that the order could also be executed by the Naib‑Tahsildar though the practise in those days was for the Tahsildar to execute such orders. It is obvious from the several provisions of the law, A which we have cited above that under the Act of 1950 the Naib -Tahsildar could, if he so chose, issue a warrant for ejectment. Keeping in view, however, the prevailing practice, he passed on the application for execution to the Tahsildar. This he could only do if the decree‑holder made an application for the transfer of the application to the Tahsildar. The exact order, which the Naib‑Tahsildar recorded on the application which the Collector has sent to him with the remark that the letter of the Punjab Government No. 698‑R, dated 17th March 1952, did not apply to such cases; is as follows:‑ "The applicant is present. It is the order of the Collector that the aforesaid letter applies only to the pending applica tions and not decided cases. The powers to issue warrants of possession are only vested in the Tahsildar. The application is, therefore, to be put before the Tahsildar to issue the warrant of possession." Though in view of the legal position stated by the Naib‑Tahsildar it is reasonable to presume that the decree‑holder must have consented to the course adopted by the Naib‑Tahsildar, there is nothing to the order to indicate that this step was taken on the application of the decree‑holder. It must, therefore, be held that there was an irregularity in the Naib‑Tahsildar's refusal to take execution proceedings himself and in forwarding the application for execution to the Tahsildar. The point, however, is whether this irregularity had the effect of rendering the entire proceedings taken by the Tahsildar null and void and of still retaining the possession of the land with the judgment‑debtor despite the execution of the warrant. If the proceedings of the Tahsildar were without jurisdiction, they would of course be inoperative to transfer possession from the judgment‑debtor to the decree‑holder. Learned counsel for the appellants relies on certain decisions under rule 5 of Order XXI of the Code of Civil Procedure to the effect that where the executing Court transfers a decree for execution directly to another Court in another district and not as required by the rule to the District Court of the district in which the transferee Court is situate, the Court receiving the decree acquires no jurisdiction to execute it, and argues that on the analogy of these decisions it must be held that where a decree is transferred under clause (d) of sub section (1) of section 39 of the Code of Civil Procedure without any application by the decree‑holder, the transferee Court must be held to have acted without jurisdiction, if it executed that decree. We are unable to accept this contention because its appears to us that the lack of jurisdiction, in order to make proceedings in execution taken by a Court inoperative, must either be a lack of jurisdiction in that Court to act m the c manner that it did or a lack of jurisdiction that has reference either to the subject‑matter of the proceedings or to the person or persons who are sought to be bound by its orders. In other words, keeping in view the limitations on its powers the act done must be such as in the circumstances could not have been done by that Court at all and not merely an irregularity in the doing of that act. In the present case, the Naib‑Tahsildar had undoubtedly the power to send the order for execution to the Tahsildar, and the Tahsildar had the jurisdiction to execute it. The parties to the order were persons over whom the Tahsildar had jurisdiction in the matter of execution. It is admitted that the proceedings before the Tahsildar would have been with jurisdiction if the decree‑holder had even expressed an oral desire before the Naib‑Tahsildar to transfer the decree to the Tahsildar because, though a written application for the execution of a decree is necessary, the mere fact that the appli cation is made verbally and not in writing would not make the proceedings taken by the executing Court without jurisdiction. Mere omission to make a formal application, therefore, did not in the present case have the effect of rendering the proceedings taken by the Tahsildar null and void. In Venkamamidi Balakrish nayya v. Nannapaneni Linga Rao (A I R 1943 Mad. 449) there was no order of transfer, yet the executing Court was held to have had the jurisdiction to execute the decree. In the present case there was an irregularly but this did not affect the Tahsildar's jurisdiction to act. The Tahsildar did not know whether there was any defect in the transfer of the order to him. He had no means of knowing whether the order had been sent to him for execution on an application by the decree‑holder. All these matters were for the Naib‑Tahsildar to look into, and when, after giving his reasons, however, erroneous, for the course that he adopted, he decided to send the order for execution to the Tahsildar, the latter acquired full jurisdiction to act in the matter. If the judgment‑debtor had any objection to the mode of transfer he could have taken it before the Naib‑Tahsildar or the Tahsildar and if such objection had been taken, the effect could have been immediately removed. But though the judgment -debtor had notice of the execution of the warrant he took no part in the proceedings and raised no objection. In these cir cumstances, neither the judgment‑debtor nor his son nor anyone else on his behalf could ignore the proceedings that bad been publicly taken by the Tahsildar and take up the position that since there was some defect in the proceedings for the transfer of the order for execution, all that had been done by the Tahsil dar, without any objection having been raised on behalf of the judgment‑debtor, was void and inoperative and did not have the effect of transferring possession of the land from him to the person in whose favour it had been decreed by a competent Tribunal. The execution of the warrant had in law the effect of putting an end to the possession of the judgment‑debtor and that being so neither he nor anyone on his behalf had the right forcibly to eject a person who had rightly been put in possession. The use of force by the appellants was therefore criminal from its very inception rendering each of them criminally liable. The offence committed by Khurshid who literally smashed the skull of Akbar to pieces, was murder, there being no justifying circumstance, while the other two appellants must be held to have had at least the common intention to cause grievous hurt to the deceased and thus liable to punishment under section 325 of the Penal Code. The entry on the land by all three was undoubtedly criminal trespass. We, there fore, dismiss this appeal and confirm the sentence of death on Khurshid. A.H. Appeal dismissed