Full Judgment
Madgavkar, J.
1. This is an application in revision by the petitioner, Garbad Yadav Vani, accused No. 1 in the case, against the order passed by the District Magistrate, East Khandesh, on May 17, 1930, under Section 522 of the Criminal Procedure Code, reinstating the complainant in possession.
2. The original complaint was against eleven accused including accused No. 2, Kushaba, the brother of the present petitioner, accused No. 1., Garbad. The case of the complainant was that, notwithstanding certain sale deeds between him and accused No. 1, he had continued in possession of certain lands and sown the crops, but had been forcibly dispossessed by the eleven accused. The trial Court held the complaint true as against all the accused except accused Nos. 1 and 11 whose presence was not proved and therefore it acquitted accused Nos. 1 and 11 and convicted the other accused under Sections 147 and 342 of the Indian Penal Code. The appeals of accused Nos. 2 to 10 were dismissed by the District Magistrate and within a month of the dismissal of the appeals the District Magistrate, on the petition of the complainant, passed the order now sought to be revised.
3. Three points are taken for the petitioner; firstly, that the petitioner was not convicted and therefore no order under Section 522 could be made against him, secondly, no notice was given to him, and thirdly, from the history of the land, the petitioner had proved that the land orginally belonged to him and had been purchased by the complainant though full payment had not been made and that subsequently by a sale-deed for Us. 6500 the title revested in the petitioner and did not remain with the complainant.
4. It is contended for the Crown that as the other accused have been convicted, accused No. 1's acquittal did not render an order under Section 522 bad, that notice, even if proper, was not necessary in law, the sale-deed notwithstanding, and both the lower Courts held dispossession of the complainant proved with use of force by the accused.
5. Following the words of a 522, accused Nos. 2 to 10 had been convicted of an offence attended by criminal force and it appeared to the Court that by such force the complainant had been dispossessed of the immoveable property, therefore the Court might, if it thought fit, at any time within one month after the conviction, order the complainant to be restored to the possession of the same. In terms, therefore, the conviction of all the accused is in law unnecessary. It has been held by the Calcutta High Court in Mohini Mohan Chowdhry v. Harendra Chandra Chowdhry ILR (1904) Cal. 691 that there is no reason for putting a narrow construction upon Section 22 and that this section gives the convicting Court the power to make a consequential order which naturally follows from its findings that the complainant was dispossessed by force. That view finds support in the language of this Court in Narayan v. Visaji ILR (1898) 23 Bom. 494. A conviction is undoubtedly necessary under Section 622 but not necessarily the conviction of all the accused. In the present case there is evidence that in the transactions between the complainant and accused No. 1, accused No. 2, the brother of accused No. 1, was acting for accused No. 1 throughout. Whether therefore the brothers are joint, as is contended for by the Crown or not, there was evidence before the Court to hold from the sale-deed in favour of accused No. 1 that the person, in whose favour the force was used and the complainant dispossessed was accused No. 1. The case in Tulshi Ram v. Abrar Ahmad ILR (1915) All. 651 was under Section 145 of the Code of Criminal Procedure, which deals with a different set of facts. The acquittal of accused No. 1 does not render the District Magistrate's order bad : Rameswar Marwari v. Biswa Nath Sanerjet 5 C.W.N. 374. A third person who was not a party may be dispossessed if the Court found possession was in the complainant and the latter was dispossessed by force; a fortiori in the case of an accused person who has had an opportunity of disproving the complainant's possession and proving his own, such an order is in law good.
6. In regard to notice, while a notice might undoubtedly be proper, it is not necessary under the section. In the present case, as already noted above, accused No. 1 had an opportunity of proving his possession on the strength of the sale-deed but he failed to prove it. He has not therefore been prejudiced by the absence of notice. We agree with the view in Jatindra Nath v. Emperor (1913) Cri. L. J. 172, that though notice may be proper-and is usually given particularly to third parties-it is not in law necessary absolutely and its absence does not render the order bad.
7. On the last point the deed in favour of the petitioner is ostensibly a sale-deed. The Criminal Courts would not go into the question whether it was in reality a mortgage. The deed is in favour of the petitioner but both the lower Courts held that possession was not actually given under it and that the complainant had sown the crops and was forcibly dispossessed. The. petitioner's remedy, if he has a right to possession, must be under Section 522 (2) by a proper civil suit, if so advised, and not by way of revision against the present order. On that right we express no opinion.
8. In the result, therefore, the application fails and is dismissed. Rule discharged.