HARIBILASH SHOW Vs. NARAINDAS AGARWALLA

JUDGEMENT

(1.) This is a Rule obtained on behalf of three persons who have been convicted by Mr. C.C. Gupta, Magistrate, First Class, Hooghly, under Section 426, I.P.C., and sentenced to pay fine of Rs. 25 each; in default to undergo rigorous imprisonment for one week. Out of the fine a sum of Rs. 30 was directed to be paid to the complainant as compensation. The facts of the case are for the most part undisputed. The complainant has got a house and a privy upon plot No. 630 of Mauza Shibpur which he purchased from one Panchanan Kundu by a registered deed of sale dated 21 December 1936. On the west side of this land there is an ijmali passage described as the western boundary in the kobala, and this passage runs north to south, and is about 49 feet long. It has been found by the trial Magistrate that the accused have their land on the west and north of this passage, and that there was a kachcha drain on the northern part of the passage to the extent of about 9 feet which served as an outlet for the excess water of the complainant's house. The drain did not continue further to the south, but as the natural slope was towards that direction the Magistrate found that the whole passage practically served the purpose of a natural drain. What the complainant has done is this: he has made the entire drain pucca and connected it with the municipal drain on the south. The accused who are lessees under Panchanan Kundu, the vendor of the complainant, were given a right of way over this passage for the purpose of reaching their rented huts, and the allegation of the prosecution is that the accused have pulled down the entire pucca drain constructed by the complainant, and thereby caused wrongful loss to him. The defence was that the accused having a right of way over this ijmali passage, the construction of the pucca drain by the complainant was itself an obstruction of their right of way, and they had every right in law to remove it. It was alleged however that they had not actually demolished the structure, but had only prevented the construction of the drain before it was actually built up by the complainant. On the last point the finding is against the accused, and it has been found by the trying Magistrate that the accused did as a matter of fact demolish the pucca drain. Mr. Sudhansu Sekhar Mukherjee who appears for the petitioners has contended before me that even on the findings arrived at by the trying Magistrate, no case of mischief under Section 426 has been made out. He argues that the accused admittedly have a right of passing over this ijmali passage which did not belong to the complainant. If the drain that was constructed by the complainant did obstruct this right of passage which the accused admittedly had, it was not a wrongful or illegal act on their part to destroy and remove this structure. At the worst it was an act of abating a nuisance which was created by the complainant on this particular place, and as such no conviction under Section 426,1. P. C, is justifiable. Now to constitute mischief it is undoubtedly necessary to show that the accused committed an act with intent to cause or knowing that he was likely to cause wrongful loss or damage to any person. "Wrongful loss" as defined in Section 23, I.P.C., would mean loss by unlawful means of property to which the person losing it is legally entitled.

(2.) We need not discuss the question as to whether the site of the drain did really belong to the complainant. Mr. Chatterjee on behalf- of the complainant has argued before me that there is evidence on the record to show that as a matter of fact this site is included in the complainant's kobala. I leave this question entirely open and for the purpose of this revision case, I assume that the site of the drain does not really belong to the complainant, but remains still in his vendor. Even if we assume that there certainly remains the structure and the building materials which constitute the property of the complainant, and if they had been destroyed by the accused by any unlawful means as is provided for in Section 23, I.P.C., it would be certainly a wrongful loss within the meaning of the Section. The determination of this question as to whether the accused employed any unlawful means would depend upon the fact as to whether they had any right to take the law in their own hands for the purpose of removing the structure which according to them constituted an obstruction of their right of easement. It has been held by the Bombay High Court in Emperor V/s. Zipru Tanaji (1927) 14 AIR Bom 363, that in case of a private easement right it is not open to the dominant owner to remove the obstruction of his own accord by taking the law in his own hands. The decision undoubtedly proceeds upon the express provisions of Section 36, Easements Act, which is in force in Bombay but not in Bengal. So far as this province is concerned it may be said therefore that the same principle which is recognized by English Courts in the matter of abatement of nuisance relating to obstruction of easement would apply. The tendency of English Judges is undoubtedly to discourage this practice of allowing private parties to redress their grievances by their own acts, vide Hide V/s. Graham (1862) 1 H&C 593, and such rights are never allowed unless the obstruction has actually become a nuisance.

(3.) In this case it appears from the findings of the trial Magistrate that even before the construction of this pucca drain, water as a matter of fact flowed over this disputed strip. It has been further found that the accused's right of way to go to the rented huts is not in the least impaired by the construction of the pucca drain, and there is no evidence on the record to show that as a matter of fact it is impossible for them to exercise their right of way after the drain has been constructed. In these circumstances the obstruction, even assuming it to be one, does not amount to a nuisance, and does not justify the accused in removing the structure by taking the law in their own hands. They had really employed unlawful means for the purpose of causing loss to the complainant which in law he is not bound to suffer. As I cannot find on the facts actually found by the trying Magistrate that there was any bona fides on the part of the accused in this respect, I am unable to hold that the accused can escape conviction under Section 426, I.P.C. The result is that the Rule is discharged, and the conviction and sentence are upheld.