1. In this case the property on which the alleged offence was committed belonged to two widows, who being issueless, had brought up fifth and sixth defendants as their sons. These persons had the management of the property. A disagreement arising between them and the widows, the latter made over the property to the Manager of the Vishnu Pagoda at Tirukoilur by a mortgage-deed under which he was authorized to take possession of the property. This person leased the property to defendants 1 to 3 on a cowle. These, with fourth defendant and others not charged, made forcible entry into the land and have been convicted of rioting and sentenced to a moderate term of imprisonment, which, in appeal, was made still lighter. Defendants 5 to 14 were discharged as having only defended their possession.
2. Mr. Norton contends that fifth and sixth defendants cannot be regarded as having been in possession on behalf of the widows as their managers; that the rightful possession was with the lessees, and that consequently the conviction is wrong.
3. Several cases were quoted. The case of Rajcoomar Singh I.L.R. 3 Cal. 273 is a case of mischief.
4. It seems to have been held that mischief could not be charged, because by a decree it had been decided that the property destroyed had not been lawfully erected on the land, and that, therefore, there was no wrongful loss. But we have not to deal with a case of mischief here. The charge is rioting.
5. The case in the Appendix (p. 13) to Volume VI of the Madras High Court Reports relates to a question of the possession intended under Chapter XXII of the Criminal Procedure Code, which has no bearing on the present matter. The ruling has further been questioned in a later case.
6. In Jones v. Chapman 2 Exch. 820 it was stated by Maule, J. that, if there be two persons in a field, each asserting that the field is his, and each doing some act in assertion of the right of possession, the person who has the title is in actual possession and the other is a trespasser. Applying this to the present case, Mr. Norton contends that the lessees had the title to possession and therefore the possession and that their acts were accordingly innocent.
7. It will be seen, however, that that decision was not upon a question of the violation of the public law as in the present case, and if the case of Harvey v. Brydges 14 M. & W. 437 be referred to, it will be seen that, although as between the parties themselves the defendants 1 to 4 in this case might not under English law be liable in damages to fifth and sixth defendants in a suit brought by the latter, they would be liable to be indicted under the same law for forcible entry, and this is also the case in India. And probably, under the law in India, the violation of a public duty causing damage, as the acts of defendants 1 to 4 did by their assault on defendants 5 and 6, would be a good ground of action against defendants 1 to 4, although the contrary was held to be the rule in England in the case referred to.
8. I think the decision is right, and that this Court should not interfere.
9. The petition is dismissed.
10. Ordered accordingly.