Deocharan Singh and Others vs Ramsunder Sahu

James, J.—The petitioners have been fined fifty rupees each u/s 426, I.P.C. In village Dhekcha in Palamau District one of the sources of irrigation is an ahar bearing plot 470 which according to the fard-ab-pashi is fed by a pyne. It appears that the pyne which feeds the ahar descends from the slope of a hill which bears plot 105.

In recent partition proceedings plot 105 fell to Ramsunder Sahu who set about reclaiming a portion of the lower slope across the bed of the pyne which feeds the ahar in plot 470. The petitioners who enjoy the right of irrigation from plot 470 cut the pyne of the complainant''s ahar at the places where it obstructed their water, course for which they have been convicted for mischief. They snatched away the spades of the three labourers at the same time for which they were convicted of theft; but no sentence was passed u/s 379.

On behalf of the petitioners it is argued that they committed no act of trespass when they cut the pyne at the place where it obstructed the flow of water. The learned advocate for the complainant objects that it was not claimed in the trial Court or in the Appellate Court that the petitioners had a legal right to cut the bund; and he suggests that this is a new case on behalf of the petitioners which ought not to be put forward at this stage; but the learned advocate for the petitioners is merely arguing on facts which have been found by the trying Magistrate, or appear in the evidence of the Sub-Inspector of Police, and on the irrigation record which is presumed to be correct unless it is proved by evidence to be incorrect. These proved facts show that the petitioners as beneficiaries of the irrigation rights from plot 470 are entitled to see that the source from which plot 470 is fed is not obstructed; and it appears that they have been enjoying this right at least since 1917 at the time when the partition was completed. These existing rights of (irrigation were specially reserved so that although Ramsunder Sahu may have obtained possession of plot 105, his rights were limited by the right of watercourse enjoyed by the beneficiaries of plot 470. When he obstructed this right of water, course, he was committing an act of trespass and the loss which may have been caused to him by the petitioners when they destroyed that obstruction in order to exercise their own right of watercourse cannot be considered to be wrongful loss.

This case is in many respects similar to that in In re Dharmalinga Mudaly, AIR 1915 Mad. 73 in which Sadasiva Ayyar, J. pointed out that a trespasser cannot by the act of trespass immediately give himself what the law understands by possession against the person whom he ejects. The complainant''s enjoyment of possession of plot 105 was subject to the rights of those entitled to benefit by the use of plot 470 and no offence was committed when the petitioners asserted those rights. The petition is allowed.

The conviction and sentence u/s 426 are set aside.

The petitioners have also been convicted of theft; but there has been no discussion in either of the Courts of the evidence on that point. It appears that for the removal of the obstruction spades were snatched from three of the complainant''s labourers which is likely enough; but there is no discussion of the evidence to the effect that after removing the obstruction the petitioners took the spades for themselves.

The conviction u/s 379 may also be set aside.