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Madras High Court
In Re: Dharmalinga Mudaly And … vs Unknown on 15 October, 1914
Equivalent citations: (1916) ILR 39 Mad 57
Author: S Ayyar
Bench: S Ayyar


Sadasiva Ayyar, J.

1. The Sub-Magistrate discharged the accused because ho held that in pulling down the wall built by the complainant the accused acted in the assertion of a bona fide public right to the site on which the wall was built, that site being a public way.

2. The accused was charged under Sections 147, 426 and 447, Indian Penal Code. Section 426 relates to mischief and mischief includes an intent to cause wrongful loss. If the site was a public path and if the complainant obstructed it wrongfully by a wall, the loss caused to him by the members of the public who pull it down in order to exercise their right of way through the site cannot be considered wrongful loss. As regards Section 447, that again depends on the question whether the site was a public path and even if it was not, whether it was in complainant’s effective possession. As soon as the complainant began to build and obstruct the path, the accused remonstrated and took steps to have the obstruction removed and it cannot be held that, in these circumstances, the complainant had taken such effective possession as would make the act of the public who pulled down the obstruction (caused by the accused) to constitute criminal trespass. In Browne v. Dawson (1840) 12 A. & E., 624; B.C. 113 E.R. 650, Lord Denman, C.J., said: “A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects.” As Mr. Mayne says: “A mere trespasser cannot obtain what is known in law as possession, by the act of entry, or even by the continuance of that act, so long as the act is disputed and resisted.” It is on this ground that in Section 145, Criminal Procedure Code, Clause 4, proviso (1), it is stated that possession within two months before the date of the Magistrate’s order might be treated as continuing peaceable and juridical possession even though there was a subsequent and very recent forcible dispossession by the opposite party. This shows that the legislature held that a mere trespasser need not be considered as having acquired peaceable and juridical possession till his possession is acquiesced in for two months. A parson who takes possession of the site of a public road and builds upon it to the obstruction of the public cannot by his vary act of creating a public nuisance be held to have acquired peaceable and effective possession of that site so as to prevent a member of the public from pulling down that obstruction and exercising his right of way. If, of course, peaceable and effective possession had been acquired by the wrongful act and has been in a manner acquiesced in for a reasonable period, private parsons cannot afterwards be allowed to assemble in force and cannot trespass upon the site so effectively and peaceably taken possession of by the person, without their being guilty of the offence of being members of an unlawful assembly though the person who had obstructed the road might be liable to punishment on criminal indictment and may be dispossessed by the public authorities under Section 133 of the Criminal Procedure Code and under Section 6 of the Madras Land Encroachment Act III of 1905. But it is only where a trespasser’s possession has been acquiesced in and hence he has acquired juridical possession that the person entitled to possession cannot dispossess him by force without making himself liable under the criminal law. See Kailash Ghose v. Jugal Lohar (1905) 1 C.L.J. 104.

3. In the present case, the accused had been exercising their right of way through the site in question till the complainant began to build upon it Before he could acquire effective peaceable and juridical possession and without acquiescing in his possession they dispossessed him and removed the obstruction caused by him. Hence I think that the Sub-Magistrate was justified in discharging them and the learned District Magistrate ought not to have ordered further enquiry, The District Magistrate’s order is set aside and the proceedings against the accused (petitioners) will be dropped.

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