SHARMA, J.—This is a reference under sec. 438 of the Criminal Procedure Code by the Additional Sessions Judge, Jhalawar, in case under sec. 341 I.P.C. The complaint who is the opposite party made a complaint that he was the tenant of certain house which has now been purchased by the accused Ramchand. He had been using a privy and a well in a chowk which was accessible through a door in the west. The accused Ramchand took possession of a kothri towards the west from the complainant which had formerly been in his possession and the rent was reduced by Rs. 2/- on this account. After taking the kothri in his possession the accused Ramchand locked the western door making it impossible for the complainant to go through it to the privy and the well in the chowk. It was alleged that the accused Ramchand and Chauthmal both of whom had locked the door were guilty of an offence under sec. 341 I.P.C. and should be convicted and punished accordingly.

2. Chauthmal denied any connection with the closing of the door. Ramchand said that he had become the owner of the house and had obtained possession of the kothri from the complainant with his consent and was using that kothri as a cooking place. He had closed the door after occupying possession over the kothri. He denied having committed any offence of wrongful restraint. The learned Magistrate, First Class, Bhiwanimandi, who tried the case, acquitted Chauthmal but convicted Ramchand under sec. 341 I.P.C. and sentenced hint to a fine of Rs. 40/-. Ramchand went in revision to the Sessions Court and the Additional Sessions Judge, Jhalawar, has made this reference recommending that the conviction and sentence be set aside as no offence under sec. 341 I.P.C. was made out.

3. Parties did not appear in the case. I have gone through the record of the case and the judgments of both the lower courts. The complainant was unable to prove that it was the term of his tenancy that he would use the privy and the well. It is borne out by the prosecution evidence itself that the complainant has another house on rent nearby and there is a privy in that house which he is using. It also comes out from the prosecution evidence that the complainant has been using a well known as Ramgopals well. Under these circumstances, it cannot be said that by the closing of the door no place has been left for the complainant in the vicinity for use as a privy or for taking water for his use. The accused Ramchand is admittedly the owner of the house and with the consent of the complainant he has taken possession of the kothri which is adjacent to the chowk in which the well and the privy are situated and has made a reduction of Rs. 2/- in rent on that account. Under sec. 339 I.P.C. which gives the definition of wrongful restraint there is an exception according to which the obstruction or a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct is not an offence within the meaning of the section. In the case of Sm. Sovarani Roy and another vs. The King and another (1) (A.I.R. 1950 Cal. 157.) it was held by Harries C.J. that where a landlord by locking the door prevents a tenant from entering and making use of a bathroom and a privy which he is entitled to use as a tenant, the landlord is technically guilty of the offence of wrongful restraint under sec. 339 Penal Code. However, a dispute of this kind can be tried far more suitably in a civil court than in a criminal court. In that case conviction was set aside. In the case of Belumani Nath and another vs. Ramesh Chandra Nath (2) (A.I.R. 1950 Assam, 82.) the accused was tried under sec. 341 Penal Code for obstructing a private right of way which the complainant claimed over the land of the accused. The accused denied any such right in the complainant. It was held that the failure on the part of the accused to plead at the trial that his act fell within the exception to sec. 339 could not deprive him of the right to show that

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