SEBASTIAN LOBO Vs. MINGEL D SOUZA

JUDGEMENT

(1.) In this case the accused and the complainant were neighbours and there was a dispute as regards the boundary between them which was not demarcated. The accused had put up a wall and the complainant sent a notice, Ex. A saying that he encroached on his side. To this the accused retorted by Ex. B stating that the complainant's roof encroached upon his plot and there was possibility of rain water falling on his newly built boundary wall and each of them ordered the other to remove the encroachment on his land. From his own admission in the sworn statement the complainant removed the accused's wall on 22 April, 1931, and on 24 April 1981, the accused removed part of the complainant's roof which he considered was an encroachment on his site. He has been criminally convicted of an offence Under Section 427, I.P.C., by a Bench of three Magistrates writing the majority judgment and one writing a dissenting judgment.

(2.) The first ground raised in this revision petition is that the conviction is Under Section 427 and the evidencs shows that the damage amounts only to Rs. 25. This is not contested on behalf of the Crown and and it is clear that accused could be convicted only Under Section 426. The next and the main contention is that the accused cut away the roof under a bona fide claim of right and in this connexion, In re, Daniel Grove [1882] 1Weir 488; Queen V/s. Vyapuri [1882] 5 Mad. 401 and In re, Dharmalinga Mudaly [1916] 39 Mad. 57 were quoted. In In re, Daniel Grove [1882] 1Weir 488 it is stated as follows: If a parson removes an obstruction from property which is not his own, but which he believes to be his own and thereby causes loss, yet as he had not the intention nor the knowledge which are necessary to constitute the of fence, he cannot be convicted of mischief.

(3.) That seems to be exactly similar to the present case particularly when we consider that the complainant himself under, a similar exercise of his supposed rights removed the accused's wall only two days before. I think that this is clearly a ease where the matter was one for the civil Courts to decide, as the criminal intention was wanting. For that reason the conviction must be set aside.