SUKUMARAN NADAR Vs. SADASIVAN

JUDGEMENT

(1.) THIS appeal by a private complainant before the trial magistrate is against the acquittal of the respondents 1 and 2 in respect of the offence under S. 427 read with S. 34 IPC.

(2.) THE allegation against the respondents was that on 2151969 they dug a trench measuring 12 x 11/2 x 21/2 feet in dimension in their property, but adjacent to and touching the western wall of the building in which the complainant lived. THE complainant and the respondents are living in adjacent buildings. THE building occupied by the complainant is a bigger one than the one occupied by the respondents But, in between the two buildings, there is a vacant space in which the trench was dug. It is alleged that prior to the incident in question, there was some dispute between the complainant and the respondents with regard to the rain water falling from the eves of the complainant's building into the respondents' property and that the trench was dug in retaliation. Anyway, the complainant examined as pw. 1 stated that as a result of the trench dug in the respondents' property, a crack to the wall as well as some dislocation to the basement of his building had been caused. THE actual digging of the trench by the respondents was witnessed by pws. 2 and 3. On the application of the complainant, pw. 4 an Advocate was deputed by the court to prepare a mahazar, which is marked as Ext. P3. THE evidence of Pw. 4 was that a trench had been dog and that a crack as well as the dislocation of a stone in the basement had been seen by him. On the basis of the evidence and other circumstances, the trial magistrate found that the offence of mischief against the respondent had not been made out and, therefore, he acquitted them.

(3.) THE proposition itself was stated by Ayling and Coutts trotter JJ. in In re Athi Ayyar, (AIR. 1921 Madras 322 ). THE observation may be seen as follows: "the right to lateral support from an adjacent land belonging to others is a right which can only be acquired by prescription and by prescription for the required number of 20 years in this country in respect of land in the state in which it has been throughout the period; so that if you put an additional burden on land, by superstructure, you can have prescriptive rights for the land so burdened, only if you have had 20 years' enjoyment of the land in that condition without any interruption. "