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Criminal Revision No. 10 of 1951, decided on. 20th February 1951.

(a) Penal Code (XLV of 1860), Ss. 23, 425‑Levelling one's own Plot of land resulting in rain‑water flowing towards complainant's house‑Loss‑Whether caused by unlawful means.

The words "wrongful loss or damage" only include loss or damage caused by unlawful means. Where the petitioner simply changed the level of the plot belonging to him; there was nothing unlawful in his doing so. He was entitled to deal with his property in any manner he liked unless other party had any right over it.

The petitioner was not guilty of an offence under section 425, A. P. C. 59 Born. 177 ref.

Ashiq Hussain, for Petitioner.

Mohammad Sharif, Advocate‑General, for Government.

The petitioner, Sher Alam, is the owner of a plot of land situated towards the east of the house of one Fazal. The rain‑water of this plot used to flow towards the east. The peti tioner levelled the surface of his plot with the result that the rain‑water flowed towards the west. Before this the surface of the plot on its western side which was close to the house of Fazal was higher than the public path intervening between the plot and the house of Fazal and after it was levelled the surface was lowered by one foot below the public path. It was alleged that the rain‑water accumulated in a part of the plot to‑wards the west and filtering beneath the path damaged the house of Fazal. A complaint was made to the police that Fazal had suffered a loss of about Rs. 2,000 by destruction of a portion of his house through the action of the petitioner. The petitioner was according ly challaned under section 432 A. P. C.

The petitioner was placed on his trial before Ch. Rahimdad Sub‑Judge Magistrate; Mirpur. This Officer recorded the evidence produced in the case and inspected the spot. It was found that the house of Fazal was situated on a lower level than that of the plot belonging to the petitioner and a "gall" five feet in width intervened between them. No signs of the rain‑water flowing from the plot of the petitioner into the house of Fazal the wall adjacent to the path was standing intact. It was, however, noticed that the rats had caused holes underneath the wall of the house of Fazal opening towards the plot of the petitioner and this probably led to the passing of rain‑water from the plot of the petitioner into the house of Fazal, the roof of which fell down partly.

On the strength of the above facts the learned Magistrate convicted the petitioner under section 427 A P. C. and sentenced him to a fine of Rs. 150 out of which the amount of Rs. 50 was directed to be paid to Fazal as a compensation. The petitioner preferred .an appeal against his conviction and sentence to, the Sessions Judge, Mirpur, who modified the order only to this extent that Fazal be paid Rs. 100 as a compensation instead of Rs. 50. The petitioner has now come up to this Court in revision.

The short question for determination is whether the action of the petitioner in lowering the surface of his plot towards the west amounted to mischief as defined in section 425 A. P. C. which runs as follows :‑

"Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its ‑value or utility, or affects it injuriously, commits mischief".

Explanation :‑---

1. It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.

2. Mischief maybe committed by any act affecting property be longing to the person who commits the act or to that person and others jointly.

The above section contemplates the following ingredients to constitute an offence.

1. Intention or knowledge of likelihood to cause wrongful Loss or damage to the public or to any person.

2. Causing the destruction of some property or any change in it or in its situation.

3. Such change must destroy or diminish its value or utility or affect it injuriously.

The meanings of the words "wrongful loss are given in section 23 of A. P. C. It is the loss causes unlawful means of property to which the person losing it is legally entitled. The words "wrongful loss or damage" thus only include loss or damage caused by unlawful means. The petitioner simply clanged the level of the plot belonging to him. There was nothing unlawful in his doing so. He was entitled to deal with hi, property in any manner he liked unless‑other party had any right over it. In this case there is no evidence that Fazal who figured as a complainant had any right of easement over the plot belonging to the petitioner and the petitioner intended to do away with that right by changing the level of the plot. In a case reported as 59. Born. 177, a person installed an oil engine on his property. The complainant, who was his neighbour instituted criminal proceedings against him alleging that the property of the complainant suffered by reason of vibrations by the engine. It was held that the accused was not liable to be convicted of mischief for there was nothing unlawful, in his installing an oil engine in his property and working it in any manner he chose and if any loss was suffered by the other party the matter could be dealt with in a Civil Court. In the present case the loss suffered by Fazal by the falling of the roof of the house was not the direct result of the action‑ of the petitioner. In the circumstances the important ingredient of the offence under section 425 i. e., intention. or knowledge of the likelihood to cause wrongful loss or damage to the public or to any person was want ing. Besides the facts established also suggest the absence of the third ingredient stated above of offence under section 425 A. P. C. because the finding of the learned Magistrate is that the rats had caused holes underneath the wall of the house of Fazal and this led to the passing of the rain‑water accumulated in the plot of the petitioner into that house and the roof was damaged.

For the above reasons I hold that the conviction of the petitioner under section 425 is bad and must be set aside. I accordingly accept, the petition in revision and setting aside the conviction and sentence of the petitioner acquit him. The fine if any paid by the petitioner shall be refunded to him.

K. M. A. /A. H. Petition accepted.

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