Sankaran Nair, J.
1. The accused are convicted for having trespassed into a vacant manai of the prosecution witness No. 1, formed themselves into an unlawful assembly, pulled out the fence therein, broken down a wall and re-built it. They are convicted under Sections 426, 143 and 447, Indian Penal Code.
2. The first prosecution witness admits that the wall pulled down and partly re-built is the eastern wall of the house of the 2nd accused, to whom, therefore, it prima facie belongs The evidence of title of prosecution witness No. 1 is the razinama decree (Ex. A.) to which the 2nd accused was not a party. In his own words 'I say that the wall belongs to me, because the defendant in the Civil suit has written that the wall belongs to me.' He also admits that the wall was not delivered to him by the Court Amin. He has, therefore, not proved his title or possession. He also admits that about 5 or 6 feet of wall had been erected before the 1st of July, the date of the offence. There is no doubt in the circumstances that the 2nd accused, therefore, continued to remain in possession of the wall of his own house. There can be no unlawful assembly under Section 143 as the accused were there to build their own wall. It does not. appear how the accused are guilty of mischief. The accused went to the place neither to commit any offence or to intimidate, insult or to annoy the prosecution witness No. 1, if they went there to build their own wall. The facts above referred to are not noticed by either of the lower Courts, and their conclusions which are inconsistent with them cannot, therefore, be accepted.
3. I, therefore, set aside the convictions and direct that the fines, if levied, be refunded.