T.C. Shrivastava, J.
1. The petitioners have been convicted under Section 426, I. P. C. and have been sentenced to pay a, fine of Rs. 10/- each. They have comeup in revision.
2. Facts of the case are not disputed. The parties own adjoining houses. There are some windows and other apertures to let in light and air in the house of the petitioners. The non-applicant wanted to obstruct these windows and apertures and the petitioners filed a suit against them to restrain him from doing so. They got a decree in their favour directing the non-applicant not to interfere with the right of the applicants to have light and air from the windows (Ex. D/1). On 20-7-1953 the non-applicant commenced erecting a wall which was raised to the level of obstructing one of the windows. At this, the petitioners, demolished the wall. The prosecution case was that in doing so, the petitioners caused wrongful loss to the non-applicant and their act thus amounted to an offence of mischief under Section 426, I. P. C.
3. The first contention advanced on behalf of the petitioners is that they had a right to pull down the wall under Section 24 of the Indian Easements Act. Section 24 of that Act entitles the dominant owner to do all acts necessary to secure the full enjoyment of an easement. From the illustrations given below that section it is clear that the acts contemplated to be done by the dominant owner in this section are such acts as are necessary to secure the enjoyment of the easement proper to him.
He is thus entitled to go on the land of the servicnt owner to make necessary repairs to a drain or to a way, etc. The right contemplated by this section has been called an accessory right in the section itself. The words 'acts necessary to secure the full enjoyment of an easement' which occur in the first sentence of the section arc repeated in the definition of an accessory right given in the second sentence of that section. It is thus clear that Section 24 has reference to 'accessory rights' only and does not give a right to remove direct obstructions wilfully placed by the servient owner.
I need not however discuss the question further in view of the provisions in Section 36 of the Act. That section opens with the words 'notwithstanding the provisions of Section 24'. It is thus clear that the provisions in that section have effect in spite of anything that may have been said in the earlier section. That section specifically provides that the dominant owner cannot himself abate a wrongful obstruction of an easement. The language is quite clear and is incapable of any other meaning. The obstruction placed by the servient owner may be wrongful. Still, the dominant owner has no right to remove it.
His only remedy is to take recourse to proper proceedings to compel the servient owner to do so. The provisions in these sections are deviations from the English Law under which the dominant owner has a right to remove obstructions. The fact that the petitioners had obtained a decree does not improve their position and it appears to me that Section 36 will still continue to apply. The remedy available to the dominant owner who has obtained a decree would be either to have the opposite party punished for flouting the injunction against them or to file a suit for mandatory injunction to remove the obstruction.
4. In view of the specific provisions in Section 36 the act of the petitioners in pulling down the wall was an act specifically prohibited by law. They could not therefore be said to have acted in good faith when they pulled down the wall. Further, there is no substance in the argument that the petitioners did not want to cause any wrongful loss to the opposite side but wanted only to protect themselves. The obvious consequence of the act of pulling down the wall is to cause loss to the opposite side and as the petitioners had no right in law to do so, they must be deemed to have intended to cause wrongful loss to the non-applicants.
5. In Zipru v. Emperor, AIR 1927 Bom 363 (A), the accused had obtained a decree restraining the complainants from obstructing their right of way on certain land. The complainants obstructed the way in spite of this decree by putting in stonedams across the way. The accused removed the darns and was prosecuted under Section 426, I. P. C. It was held that the act of the accused in removing the stones was contrary to the provisions of Section 30 of the Easements Act and therefore, his action in removing the dam amounted to mischief under Section 426, I.P.C. The question of causing 'wrongful loss' was also discussed and it was held that such loss was caused to the opposite side.
6. In Munnuswami Chetti v. Munniswami Chetti, AIR 1948 Mad 477 (B), a similar question arose for decision. There also the accused had pulled down a wall which obstructed his right of way. It was held that Section 36 of the Indian Easements Act prevented a dominant owner from abating wrongful obstruction of an easement and the accused had therefore no right to pull down the wall. It was observed in that case that the accused in such a case would be guilty of mischief even though he had a bona fide intention in abating the nuisance.
7. It is next contended on behalf of the petitioners that they were acting in exercise of the private defence of property and should not therefore have been convicted. Reliance is placed on Jambulingam v. Punnuswami, AIR 1939 Mad 400 (C), where it was held that a person who in good faith cuts down the eaves of the house, of the neighbour which project on his land, is not guilty of the offence of mischief. In such case, it would be observed that the projection of the eaves amounts to a criminal trespass and is thus an inroad on the property of the accused.
In the instant case however, the wall was constructed by the non-applicant on his own land and the only result was the obstruction to the easement of light and air which the petitioners had established in their favour. It has been held in Punjaji v. Maroti, 1951 Nag LJ 289 (AIR 1952 Nag 193 (1) ) (O)) that an easement does not come within the purview of property in Section 425, T. P. C. In that case the complainant had a right to carry water through a drain which existed on the land of the accused. The accused destroyed the drain and it was complained that this act of the accused amounted to mischief. It was held as follows :
'An easement, however, does not come within the purview of 'property' in Section 425 of the Indian Penal Code and in the unreported case entitled Keru (1888) of the Bombay High Court it was held that 'property' under that section means tangible property capable of being forcibly destroyed, and docs not include an easement.'
In this view the obstruction to the easement of light and air could not give a right of private defence of property.
8. Further, even if the accused had such a right, they could not avail of it in the present case, Section 99, I. P. C. provides that there is no right of private defence in cases in which there is time to have recourse to the public authorities. The nuisance of the wall took place in the morning and it must have taken time to reach the window. The petitioners could approach the civil Court for a mandatory injunction to restrain the opposite party from constructing the wall.
9. It is true that the action of the non-applicant ia constructing the wall to obstruct the windows contrary to a decree existing against them was improper. Un-fortunately however, the petitioners were prevented from taking recourse to self-help in removing the obstructions by the express provisions in Section 36 o the Easements Act. As I have said, their remedy was to pursue the matter in a Court of law. The conduct of the non-applicant has been considered by the trial Court inasmuch is only a nominal sentence of fine has been awarded.
10. The petition for revision is dismissed.