AIR 1977 SUPREME COURT 619 ::1977 Cri App R (SC) 63 ::1977 AllCriC 85 ::(1977) 1 SCC 188 ::(1977) 2 SCR 232 ::1977 SCC(Cri) 85 ::1977 SC Cri R 105

Supreme Court Of India

(From: Allahabad)*

Hon'ble Judge(s): P. N. Bhagwati, V. R. Krishna Iyer, S. Murtaza Fazal Ali , JJJ

(A) Penal Code (45 of 1860) , S.97, S.99— Private defence of property - Right against trespasser - when not available even to true owner - Illustration. A true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner @page-SC620 should dispossess the trespasser by taking recourse to the remedies available under the law. While it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes complete and accomplished, yet, one of the tests is to find out who had grown the crop on the land in dispute. Where in prosecution for offence of murder, it was found concurrently by the lower courts that the complainant after having encroached upon the disputed land (i.e. a public road) in the village, had converted it into culturable field and had grown paddy crop which complainant's party was trying to weed out on the day of occurrence, the accused party had no right to commit trespass on the land and engage the complainant's party in a serious fight. The ....