1. This is an application in revision from the decision of the First Class Magistrate of Dhulia City convicting the two accused under Sub-section 451 and 426 of the Indian Penal Code, viz., for house-trespass in order to commit an offence and also with committing mischief, and he has imposed a fine of Rs. 30 on each of the accused in connection with these offences.
2. Now this is not a case of house-breaking or of a criminal offence in the ordinary acceptation of the term. It is a dispute between two neighbours over what is alleged by the accused to be a party-wall belonging to himself and the complainant. The complainant in spite of a notice to the contrary had proceeded to erect an addition to this wall. The notice given by the accused warning him not to do so was given on March 11, 1924. On March 12, the complainant proceeded to add to the wall in order apparently to support a stair-case which he proposed to put up. The very same evening the accused pulled down that addition which consisted of an added or raised brick wall. On March 13, the complainant presented the present criminal complaint. On March 14, the accused filed a civil suit to restrain the complaisant from proceeding with this wall, In that civil suit he obtained an ex parte interim injunction which subsequently was made absolute pending the hearing of the suit. It was under these circumstances, viz., after the interim injunction had been made absolute, that on May 13 this criminal case came for final decision before the learned Magistrate.
3. Now to many judicial minds, what would seem to be a possible course to take was to decline to go into this question at any rate pending the civil proceedings, more especially as there had been no injury done to the complainant or his property, apart from the pulling down of the addition which the complainant had built on March 12. That course would have avoided the confusion that might possibly be caused if, say, the civil Court decided that the wall was a party wall, whereas the criminal Court decided that the wall belonged to the complainant. Moreover, as the accused were in no way ordinary criminals, it would naturally be regarded as an unwarranted slight on their reputation if they were convicted in a criminal Court of mischief, and still more so if they wore also convicted of such a high-sounding crime as house-trespass, which charge the learned Magistrate proceeded to add to the original charge during the course of the case. But, in fact, the Magistrate proceeded to hear the evidence, and he came to the conclusion that the wall in question belonged to the complainant. He also found in favour of the complainant that the accused actually entered the house of the complainant in order to pull down the addition to the wall, and that they did not merely scale a ladder in their own premises as the accused had stated.This latter finding of fact we naturally accept.
4. But, as regards the question of the joint wall, it would seem clear that there was here a bona fide claim of a right by the accused. Not only had they given this notice before the wall was ever added to, but they at once started a civil suit when the wall had been added to and obtained an interim injunction which was made absolute. Presumably, therefore, the civil Court must have thought that there was at any rate a prima facie case or a case which required to be tried as regards the wall in dispute.
5. Under these circumstances can it be fairly said to be free from all reasonable doubt that the accused here committed criminal trespass? In ray opinion it cannot be said here that they entered the house of the complainant in order to intimidate, insult or annoy any person in possession of such property within the meaning of Section 441 of the Indian Penal Code. In fact the complainant was out of the house at the time. The sole object of the accused was to pull down the addition to the wall, and that they in fact did. Then was the entry with intent 'to commit an offence' within Section 441? Now the only offence charged here is one of mischief, and to establish that charge it is necessary under Section 425 to prove that the accused acted 'with intent to cause or knowing that he is likely to cause wrongful loss or damage to...any person.' Emphasis must be laid here on the word 'wrongful.' The definition of 'wrongful loss' will be found in Section 23. It is 'the loss by unlawful means of property to which the person...is legally entitled'. So there the emphatic word is 'unlawful'
6. Now if this was in fact a joint wall, there is authority at any rate in England for holding that the accused were justified in pulling down any improper addition to it. That will be found in Watson v.Gray (1880) 14 ch. D. 192, a decision of Mr. Justice Fry as he then was. A part of the head note runs: 'If one of the two tenants in common of such a wall excludes the other from the use of it by placing an obstruction on it, the only remedy of the excluded tenant is to remove the obstruction.'
7. Then if one turns to the well-known case of Lemmon v. Webb  3 Ch. 1, which was confirmed in appeal in the House of Lords  A.C. 1, it was there held that an owner of land was entitled without notice to cut down the branches of trees belonging to his neighbour which were over-hanging his land. In that case one of the main points was whether notice was necessary or not, But as in that case the owner had not trespassed on his neighbour's land, it was held that he was entitled to cut down the overhanging branches.
8. That is an instance of what is known as abating a nuisance There is even some authority for saying that 'without notice, a nuisance may be abated on the land of another in cases of emergency, and in order to protect life or property. It has further been held that abatement without notice may be justified, although involving entry on the land of another, where he is the original wrongdoer bringing into existence the nuisance, and, possibly, where the nuisance arises from a default in the performance of some legal duty imposed upon the wrongdoer.' I refer to Halsbury, yd. XXI, page 548, Section 935.
9. But I am not trying a civil suit, nor have I any intention of laying down any proposition of law as regards this particular wall. The pleaders before us cited no authorities whatever to us during the course of the argument. And in any event, in the view I take, it is a, matter for the civil Court and not for the criminal Court to determine what is the true legal position of this particular wall. So I only give the above references to authority for possible assistance to the parties subsequently.
10. I also wish to make it perfectly clear that it must not be understood from my judgment that I think the accused here were entitled to enter their neighbour's house in order to do what they did. I think they thereby took a big legal risk and that their ill-advised action not unnaturally led to hostile proceedings being taken against them, which come very near the line as to whether or no a technical criminal offence has been committed. As stated in Halsbury, Vol. XXI, Section 962, p. 547, the abatement of a nuisance 'is not a remedy which the law favours, and is not usually advisable.'
11. But the question still remains whether it is clear that the accused were rightly convicted of mischief and of house-trespass in the present case. ' In the view I take there is at least a sufficient doubt of their alleged criminality to justify us in setting aside the conviction and sentence that has been passed upon them.
12. I would accordingly set aside the conviction and sentence and order the fine, if paid, to be refunded.
13. I concur with my learned colleague that the accused were largely themselves to blame for the prosecution in view of their having gone to their neighbour's premises in order to pull down the addition to the wall in dispute, for they thereby took the law into their own hands. This was a decidedly dangerous course to take. Thus Chandavarkar and Knight JJ. in Emperor v. Gopalrao (1908) 10 B L.R. 285 held that, though a person may be entitled to have joint possession, yet he commits criminal trespass by entering on the land to recover possession forcibly from a co-owner. The actual words used are (p. 287): 'But nevertheless a person with a right is not justified in taking the law into his own hands and if he does he becomes liable for criminal trespass.' But the circumstances of that particular case were very different from the present one, for the accused had got people to assist him in bullying the complainant and hie workmen, and it was held that his object; was to acquire possession of the land from the complainant by insult and annoyance. If anything of that kind had occurred in the present case, I should certainly have not been disposed to interfere with the conviction of the accused.
14. But in the present case it is in their favour that they did not enter the house at a time when the complainant was there As the Magistrate says, they took advantage of his absence to go in. That is certainly a circumstance which tends to show I that the intention of he accused was not to intimidate, result or to annoy the complainant,--an inention which, if proved, would bring the case within the definition of criminal trespass in Section 441 of the Indian Penal Code. Thus it has been held in Emperor v. Jangi Singh I.L.R. (1903) All. 194 and Emperor v. Bazid ( I.L.R. 1904) All. 298 that such absence of the complainant showed a non-criminal intent, which prevented the entry being 'criminal trespass' under that section.
15. The learned Magistrate has not paid sufficient attention to the intention that is required to be proved before a man can be' held guilty either of mischief or of criminal trespass and hasre-corded no finding as to what the accuseded's intention was He apparently Considers that the mere fact of the accused entering the house of the complainant and pulling down the bricks was sufficient to establish the offences charged. But the law requires the necessary intention to be proved, and in the present case I do not think that the circumstances show that the accused had the requisite intention to annoy and c, or to commit an offence. I agree that the circumstances point to the accused acting under a bona fide claim of right in pulling down the addition to the wall, so that their action is not criminal under Section 425 of the Indian Penal Code. No doubt it has been held in Emperor v. Lakshman I.L.R. (1902)2.6 Bom. 558; 4 Bom. L.R. 280 that a knowledge of the possibility of annoyance resulting from an act of trespass is sufficient to bring the case within the definition of Section 441. In the judgment it is said (p. 562): 'Although there is no presumption that a person intends what is merely a possible result of his action or a result which though reasonably certain is not known to him to be so, still it must be presumed that when a man voluntarily does an act, knowing at the time that in the natural course of events a certain result will follow, he intends to bring about that result.' But in view of the absence of the complainant, when the act was done, I do not think there was such practical certainty of annoyance being caused as its 'result as is sufficient to justify an inference of intent to annoy. I think, therefore, the conviction of the accused cannot be legally sustained, and I accordingly concur in the order proposed by my learned brother.