1. The petitioners, 54 in number, were convicted of forming members of an unlawful assembly, under Section 143, Indian Penal Code, by the Taluk Magistrate of Sivaganga, and these convictions were confirmed on appeal to the Sub-Divisional Magistrate of Devakottai. For the purposes of this revision petition the following facts may be accepted. Sevalkanmoi, to which the petitioners belong, is a proprietary village and possesses a tank which irrigates their lands. The tank is fed by a channel, and a dispute arose with the ryots of Thevadiakanom village which is included in the Sivaganga Zamindari as to the right to the supply of water through this channel. The latter ryots erected a bund, marked BB, in the Commissioner's plan, which had the effect of diverting the water from the Sevalkanmoi tank and leading it to Thevadiakanom lands. The proprietor of Sevalkanmoi sued the ryots of Thevadiakanom(O.S. No. 107 of 1923) and obtained a decree directing them to remove the bund BB-1 and restore it to its original position A D. This was done by a Commissioner, in execution of the decree, on 28th and 29th October 1925. It may be noted that, whether by deliberate intention or otherwise, the Sivaganga Estate, which was under the Court of Wards, was not made a party to the proceedings. Subsequently the proprietor of Sevalkanmoi and some others, apprehending that the bund as restored by the Commissioner would be interfered with, petitioned the Sub-Divisional Magistrate, who passed an order under Section 144, Criminal Procedure Code, on 28th December, 1925, prohibitting those ryots of Thevadiakanom who had been parties to the suit from 'preventing the petitioners in maintaining the original state of the bund'. He declined to pass any such order against the Court of Wards' Assistant Tahsildar and some of the estate servants, on the ground that they were not parties to the suit. Maters standing thus, on 25th February, 1926, a large number of Sevalkanmoi ryots, including the petitioners, assembled at the scene, armed with sticks and spades clearly prepared to exert force should occasion arise. Intimation was sent to the Police, and a Sub-Inspector marched this body of persons to the Police station, disarmed them released them on bail, and charge-sheeted them under Section 143, I. P. C.
2. The point which Mr. Ethiraj seeks to make in revision of the convictions under this section is that, granting the truth of the prosecution case (which indeed appears to me to be incontestable), the petitioners were concerned not to enforce their right or supposed right to the supply of water, but merely to maintain it; and that mere maintenance of a right by force or show of force will not constitute an assembly of five or more persons an unlawful assembly. The judgment of the learned Taluk Magistrate contains a clear finding that at the time of the occurrence the bund was in the condition to which the commissioner had restored it. The learned Sub-Divisional Magistrate's finding upon the point is very obscure, but if it amounts to holding that the petitioner's opponents had, after the execution of the decree by the Commissioner, restored the bund to the line BB-1, the learned Public Prosecutor is willing to concede that there is nothing in the evidence to support this finding. I may take it, therefore, that what the petitioners did was to assemble in force with the intention of resisting an apprehended attempt on. the part of the estate officials or ryots to interfere with the bund as fixed by the Commissioner, that is to say, as it originally stood before the Thevadiakanom ryots changed its site. Now as against those of the ryots who had been parties to the suit, the petitioners had obtained a declaration of their right to have the bund as they wished it, and it has been so restored. It is true that they had not made the estate itself a party, but it may, I think, be taken that even as against the estate they entertained a bona fide belief that they were entitled to maintain the status quo. It is further clear that the petitioners were in actual possession of this right or supposed right at the time when the occurrence took place. That being so, there is clear authority in support of Mr. Ethiraj's proposition. A common illustration of the maintenance of a right by force is where persons receive information that the opposing party is going to dispossess them of a piece of land, and collect upon the land in force in order to resist such an attempt. An example of this class of cases is Pachkauri v. Queen-Empress I.L.R. (1897) C 686, where it was held that, in such circumstances, the accused were justified in taking such precautions as they thought were required, and in so doing could not rightly be held to be members of an unlawful assembly. A similar case was similarly decided in Silajit Mahto v. Emperor I.L.R. (1909) C 865. For an instance of the maintenance by force of a right to a water supply reference may be made to Bagh Singh v. Emperor 81 INDCAS 113. A more extreme case of the same kind, where the accused cut a bund which, in disobedience to an injunction, the complainant's party had constructed, was decided in the same sense in Ram Nandan Prasad Singh v. Emperor 17 CWN 1132. The learned Public Prosecutor has drawn my attention to Ganouri Lal Das v. The Queen Empress I.L.R. (1889) C 206, which also related to the forcible demolition of a bund which the accused considered to be an infringement of their rights. The facts of that case may be distinguished from those of the present case, as they have been distinguished in Pachkauri v. Queen-Empress ILR (1897) C 686, on the ground that when the accuseds' party arrived in force upon the scene their right had already been infringed. But it is certainly true that the judgment does not proceed upon the distinction between 'enforcement' and 'maintenance' and clearly lays down that to defend a right by force is to enforce it. I do not think that this view has been followed, and, if I may say so with all respect, I do not find that the passages cited from Dalton's Justice of the Peace and from Russell as expounding the English Law afford any authority for it. They relate to such assertive acts as making a forcible entry upon land to which a title is claimed, and removing a nuisance in a violent and tumultuous manner. I prefer accordingly to follow the other cases which I have cited, because it appears to me little short of self-evident that in defending what they are possessed of and bona fide believe they had a right to, whether it be tangible property or such a right as that to a supply of water, persons who have formed an assembly for that purpose do not render themselves criminally punishable.
3. I accordingly allow the petition, set aside the convictions and sentences, and direct that the fines, if paid, be refunded.