KRISHNA AYYAR Vs. AYYAPPA NAICK

JUDGEMENT

(1.) This is an application to revise the conviction under Section 430, I.P.C. of the petitioners which was confirmed in appeal by the Sub-Divisional Magistrate of Koilpatti.

(2.) It is contended that on the findings of the appellate Magistrate the offence charged under Section 430, I.P.C., has not been made out. The appellate Magistrate found that a channel existed between Re-Sarvey Nos. 252 and 253 belonging to the accused and that it was a part of the channel which carried water from the Periakulam tank to the complainant's lands, Ra-Survey Nos. 271 and 272. He also found that part of the channel between Re-Survey Nos. 252 "and 253 had been filled up by the accused recently. It is contended that these findings are not sufficient to constitute the offence of mischief. The offence as defined in the Indian Penal Code requires as an essential element of it that the accused had the intention to cause or the knowledge that their act was likely to cause wrongful loss to the complainant. Dr. Swaminadhan rightly points out that it is not sufficient to show that loss has been caused to the complainant but it is necessary to show that the loss was a wrongful loss and that his clients had the intention to cause or had knowledge that their act was likely to cause loss to the complainant. He contends that to constitute a wrongful loss in this case the complainant was bound to show that the channel which was filled up and which was entirely on the land of the accused was a channel through which he had a right to Carry water to his lands. No doubt that argument is correct, and it is also true that there is not a very clear finding that the complainant had an easement right to carry such water. But on the facts found by the appellate Magistrate it seems to be clear that such a right did exist. It is not necessary, therefore, to sond the case back to him for a fresh finding. He has found this channel existed for at least 30 years and that during these years the lands, Re-Survey Nos. 271 and 272 were cultivated with the water carried through this channel. That would establish a right in favour of the complainant to carry water through the channel ; but it is contended by Dr. Swaminadhan that during a portion of that period all his lands through which the channel from the tank passed, namely Re-Survey Nos. 255, 254 253, 252 and 271 belonged to one and the same joint family and therefore no question of easement right could arise and that as the partition in the family took place within 14 years of the date of this complaint, sufficient time has not elapsed for the complainant to get an independent easement right in his own favour. Assuming that this is so, it should be remembered that the channel has existed for 30 years and therefore must have existed at the time of the partition. If at the partition, as is conceded nothing, was said against the right in this channel not passing to the owners of R.S. Nos. 271 and 272 we must take it that it did pass. Section 13, Clause (b), of the Easements Act lay B this down. Th8 question was considered by the learned Officiating Chief Justice in a case reported in Souriraja Naidu V/s. Bajagopaian A.I.R. 1924 Mad. 812. It must therefore be held that as no objection was taken at the time of the partition to this channel passing through to Re-Survey Nos. 271 and 272, the right to take water along that channel did actually pass to the persons to whose share the lands fell. Prom them it passed to the present owner, the complainant. That being so, the filling up of that channel and thus preventing water going from the lake to the complainant's lands caused not merely loss to the complainant but wrongful loss. There is no difficulty in holding that the accused knew perfectly well that their act was likely to cause wrongful loss when they filled up the channel. The offence of mischief is thus complete. The conviction under Section 430, I.P.O. is clearly made out as the accused knew that the prevention of the supply of water necessary for agricultural purposes would cause loss.

(3.) In these circumstances there is no ground for revision and the sentence of a fine of Rs. 50 was not by any means excessive.