1. This is an application by Abdul Hadi and six others for revision of an order passed by the learned District Magistrate of Shahjahanpur, dismissing their appeals from an order passed by a Magistrate, Second Class, convicting them of offences under Sections 147 and 323, Penal Code, and sentencing them to fines. An application for revision was made to the learned Sessions Judge who dismissed it. It appears that the complainant Bhagwan Das and the applicants had had a dispute of long standing in respect of a piece of land described as 'khandsar and phulwar,' which admittedly belonged at one time to one Muhammad Bakhsh who died some time after 1901 leaving a will by which the land in dispute was bequeathed to Muhammad Sadiq and Ilahi Bakhsh, two of his four sons. He had also a daughter Mt. Sakina. The will purports to bequeath other properties to Mt. Sakina and his other sons. The will is on the record of this case and may be accepted as a genuine document. Muhammad Sadiq and Ilahi Bakhsh's heirs executed a sale deed in respect of the land in dispute in favour of Bhagwan Das, the complainant, in 1918. Bhagwan Das claimed to be the sole proprietor of the land known as khandsar and phulwar; Abdul Hadi is the son of Mt. Sakina who according to him was entitled at least to a share in this land. He claims to have been in exclusive possession of the land for a number of years.
2. On 14th December 1932 Monga Prasad and four others were sent by Bhagwan Das to dig what has been called a mond in the land in dispute. The object was to excavate a portion of the land in dispute as as to make it fit for some purpose in manufacturing sugar. Abdul Hadi and the other accused are alleged to have arrived and beaten Monga and his companions. On a complaint they were prosecuted for offences under Sections 147 and 323, Penal Code, and convicted by a Tahsildar Magistrate as already stated. The trying Magistrate found that Bhagwan Das was the sole owner of the land in dispute and in possession thereof, and that none of the accused had any right to or possession of any part of the land in dispute. He believed the prosecution witnesses who stated that all the applicants were armed with lathis and attaoked Monga Prosadi and his companions as alleged by them On those findings the applicants were convicted and sentenced under Sections 147 and 323, Penal Code. There can be little doubt, that if the findings arrived at by the Tahsildar Magistrate be accepted, an offence under Section 147 has been clearly made out and no question of law can arise.
3. In appeal to the District Magistrate it appears to have been contended on behalf of the applicants that they were in possession, and apart from any question of right, they had a right of private defence of property in their possession. They also claimed a right to the land in question-It seems also to have been argued that Bhagwan Das was not in possession and that an attempt was made on his behalf to take possession of the land on 14th December 1932. The learned District. Magistrate refused to adjudicate on questions of right and possession, holding that even if the applicants were in exclusive possession of the land in dispute, they could have no right of private defence as Bhagwan Das's men could not be considered to have been guilty of criminal trespass and therefore the applicants though in exclusive possession had no right of private defence of property. This view is manifestly erroneous. If the applicants were in exclusive and peaceful possession of the land in dispute and Bhagwan Das's men attempted to take forcible possession, and to exercise acts of ownership they would commit not only the offence of criminal trespass but also of mischief in that they were attempting to remove earth from the land and making excavations. This view is however based on the hypothesis that the applicants were in exclusive possession of a fact which was seriously controverted before the trying Magistrate who negatived it. The District Magistrate ought to have considered that aspect of the case and recorded a definite finding and then proceeded to hold whether an offence in law was established. As already stated he did not deal with the question of possession. The learned advocate for the applicant made a grievance of that fact before me and offered to establish the facts alleged by his clients if the case were sent back to the District Magistrate. I preferred to go into the whole case myself and am in a position to record a finding on the question of right and possession before finally disposing of the revision. The trying Magistrate was clearly unaware of the rule of Mahomedan Law applicable to Sunnis, as members of Muhammad Bakhsh's family were, that a will in favour of an heir is invalid unless it is consented to by the other heirs. Having held that the will executed by Muhammad Bakhsh in favour of his sons and daughter was genuine, the trying Magistrate took it as established that Muhammad Sadiq and Ilahi Bakhsh had an absolute and indefeasible right to the land in dispute, which had been bequeathed to them. This is by no means a correct proposition, unless it is shown not only that Muhammad Bakhsh bequeathed the land in dispute to Muhammad Sadiq an'd Ilabi Bakhsh but also that the other sons and daughter of Muhammad Bakhsh consented after his death to the legacy taking effect. Muhammad Sadiq and Ilahi Bakhsh could not acquire any interest in the land as legatees; such consent has not been alleged, much less established, in the present case. The judgment of the trying Magistrate clearly shows that he was greatly influenced by what he considered to be the undoubted right of the transferors of Bhagwan Das. It is difficult to say what view he would have taker if the question of right as stated above had been present to his mind. (Here his Lordship discussed the evidence as regards possession, and concluded.) Mt. Sakina, Bhagwan Das, and possibly some others who were the heirs of Muhammad Bakhsh, should be deemed to be in possession of the land in dispute 'which has been 'parti.'
4. The question then arises whether Bhagwan Das was justified in digging part of the land in dispute so as to make a mond by removing earth from it. If the answer be in the negative the next question is whether the accused had a right to prevent Bhagwan Das's men from doing so and on their persisting to dig had the right to beat them and eject them from the land in the exercise of their right of private defence of property. The learned Assistant Government Advocate argued that even assuming Bhagwan Das was not the sole owner of the land in dispute his men had a right to dig part of the land. I do not think this argument can be accepted. One of several co-sharers in constructive possession of joint land has no right to dig part of it with a view to appropriating it for his exclusive use. If he does in the teeth of opposition by another who is also in constructive possession, the act amounts to criminal trespass. The removal of earth from part of the land was calculated to diminish its value or utility and at all events to affect it injuriously within the meaning of Section 425,. Penal Code, so as to constitute the act an offence of mischief. This being so Abdul, Hadi Khan and others representing the interests of Mt. Sakina had every right to. prevent the digging of part of the land which, as already stated, amounted to-criminal trespass and mischief. Section 97, Penal Code, gives a right of private defence of property against an act which amounts inter alia to an offence of criminal trespass or mischief. In this view Abdul Hadi and others should be considered to have acted in the exercise of their right of private defence of property. Bhagwan Das had no right to do something which was objected to by his co-sharers and which would deprive them of joint possession. His object clearly was to establish exclusive possession and to, drive Abdul Hadi Khan and others to institute a civil suit. The learned Assistant Government Advocate contended that the right of private defence given by Section 97, Penal Code, is 'subject to the restrictions contained in Section 99' which provides that
there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
5. It is contended that Abdul Hadi and others had ample time to seek the assistance of the police before beating Monga Prosad and others who were digging part of the land in dispute. I am unable to accept this contention. If Section 99, Penal Code, be read in the manner desired by the learned Assistant Government Advocate, Section 97 would in most cases be nugatory. The argument leads to the result that a person having a right to defend his property against mischief or criminal trespass must, instead of protecting his property, run to the police and leave the aggressors to do what the law entitles him to protect himself against by exercising his right of private defence. It could not have been the intention of the framers of Sections 97 and 99 to compel a person having the right of private defence of property to acquiesce in criminal trespass or mischief, and not exercise his right of private defence at all. In most leases if recourse is had to public authorities the mischief complained of will have been committed before the public authorities come to his rescue. Section 105, Penal Code, provides that
the right of private defence of property commences when a reasonable apprehension of danger to the property commences.
6. It follows that if the act of mischief has already begun there is more than an apprehension of danger to the property and the right of private defence has come into existence. If the right of private defence has already arisen, it is not expected that a person entitled to exercise it should have recourse to the permission of the public authorities. He is entitled in view of the immediate danger of injury to defend it by exercising his right instead of having recourse to the public authorities. For those reasons I hold that the applicants were entitled to prevent Monga Prosad and others from digging part of the land in dispute; and on the latter persisting in doing what was clearly unlawful the applicants had a right to prevent them forcibly from digging the land and if necessary to cause hurt. The injuries inflicted by the applicants were slight and they cannot be considered to have exceeded their right of private defence. The result is that this revision is accepted. The conviction and sentences passed on the applicants are set aside. The fines if paid, shall be refunded.