1. The applicant Punjaji prosecuted the non-applicants Maroti & Ganpat under S. 427, Penal Code, in the Court of the Second Class, Magistrate, Morsi, but they were acquitted & he has now come up in revision to this Court.
2. The parties all reside in Ner Pingalai, Morsi taluq, Amravati district, & his case is, briefly stated, to the effect chat as a result of destruction by the non-applicants of a drain on 10-5-1949 which used to carry water to his field, his crop of chillies dried up & he was thereby put to a loss of about Rs. 200/-. The non-applicants asserted, on the other hand, that no drain had been damaged, Punjaji's drain was in existence & that no loss had accrued to him.
3. The non-applicant Ganpat also delved that he was not in the village on the relevant date. Three witnesses were examined in defence & the trial Court acquitted the non-applicants after it had made the following observations:
“The ‘dand’ that has been destroyed was in the field S. No. 473/5A owned by accused Maroti. Complainant had only a right to carry water through this drain. He had no ownership on the land in which the drain existed. This fact has been admitted by the complainant. Property does not include an casement under the purview of S. 427, Penal Code & hence one of the important ingredients of the offence has not been established against the accused ???. The action of the accused is a civil wrong & they cannot be held responsible under S. 427, Penal Code.”
4. The view of the learned Magistrate was supported by the learned Govt. Pleader & it seems to me that it is correct. The land in which the alleged breaching of the drain took place between the points G & I in the map P-1 belonged to Maroti & it was open to him to take any action he thought fit in respect of the drain on his land. This would necessarily be subject to some arrangement between Punjaji & himself or subject to the fact that the drain in question constituted an casement. An casement, however, does not come within the purview of “property” in S. 425. Penal Code & in the unreported case entitled Keru (1888) of the Bombay H.C it was held that “property” under that section, means tangible property capable of being forcibly destroyed, & does not include an casement.
5. In ‘Queen Empress v. Govinda Punja’, 8 Bom 295, the view taken was that where the owner of an animal buries the carcass after its death, he is not guilty of mischief or any other offence although he does so with the express object of preventing the Mahars of his village from taking its skin according to the custom of the country. These decisions were followed by Pandalai, J.; in ‘Rudraraju Ramaraju…Accused v. Emperor…Opposite Party.’, AIR (17) 1930 Mad 973, in which he decided that if the owner of land of which another or a body of others have a right either of passage or other use throws ??? upon that ??? so that the use becomes either disadvantageous or impossible, that does not amount to mischief within S. 425, Penal Code, inasmuch as the only value which is diminished or utility which is destroyed is that of the right of thoroughfare in the absence of anything to show that the land itself has lost either its value or its utility or is in any way affected injuriously.
6. Here, the questions involved are, as the learned Govt. Pleader has pointed out, one for adjudication by a civil & not by a criminal Court. The learned Magistrate acted properly, therefore, in acquitting the non-applicants, &, there is no reason why their re-trial should now be ordered.
7. The application is accordingly dismissed.
8. Revision dismissed.