The act of digging a trench on one's own land, even if it causes damage to a neighbor's property, does not amount to mischief under section 425, Indian Penal Code.

This appeal by a private complainant before the trial Magistrate is against the acquittal of the respondents 1 and 2 in respect of the offence under section 427 read with section 34, Indian Penal Code.

2. The allegation against the respondents was that on 21st May, 1969, they dug a trench measuring 22 × 1½ × 2½ feet in dimension in their property, but adjacent to and touching the western wall of the building in which the complainant lived. The complainant and the respondents are living in adjacent buildings. The building occupied by the complainant is a bigger one than the one occupied by the respondents. But, in between the two buildings, there is a vacant space in which the trench was dug. It is alleged that prior to the incident in question, there was some dispute between the complainant and the respondents with regard to the rain water falling from the eves of the complainant’s building into the respondent’s property and that the trench was dug in retaliation. Anyway, the complainant examined as P.W. 1 stated that as a result of the trench dug in the respondent’s property, a crack to the wall as well as some dislocation to the basement of his building had been caused. The actual digging of the trench by the respondents was witnessed by P.Ws. 2 and 3. On the application of the complainant, P.W.4 an Advocate was deputed by the Court to prepare a mahazar, which is marked as Exhibit P-3. The evidence of P.W.4 was that a trench had been dug and that a crack as well as the dislocation of a stone in the basement had been seen by him. On the basis of the evidence and other circumstances, the trial Magistrate found that the offence of mischief against the respondent had not been made out and, therefore, he acquitted them..

3. The evidence is, more or less, conclusive to prove that the respondents dug a trench in between the respective buildings adjacent to and touching the Western Wall of the complainant’s building. The respondents did not admit that a trench had been dug. But, in the light of the evidence of P.Ws. I to 4 and the mahazar, Exhibit P-3, I am constrained to hold that the respondents dug the trench as alleged. But the evidence of P.W.4, the Advocate-commissioner, did not reveal that the crack and the dislocation of a basement stone were the direct result of the trench which was dug by the respondents as he did not give any opinion as to when the crack as well as the dislocation to the basement took place. Anyway, we shall assume that the respondents dug a trench and as a result thereof, the part of the basement of the complainant’s building had been dislocated and that some damage, therefore, would have been caused. Even then, the question is whether the respondents 1 and 2 could be found guilty of an offence of mischief under section 427, Indian Penal Code.

4. The right to acquire lateral support to a property in the possession of a person required the acqusition of such right by such person to be in possession of that property for a requiste period of 20 years. It is a well settled proposition that the right to lateral support from an adjacent land belonging to others is a right which can be acquired by prescription on quiet enjoyment for the requisite period of 20 years in this country, so that if We put additional burden on such lands by any superstructure or otherwise, we can have prescriptive right over the land so built. But, only if we have had 20 years’ of enjoyment in the land in that condition without any interruption that we could acquire such right. The principle of this proposition was laid down in a decision reported in Dalton v. Angus1. The relevant passage in that decision reads:

“It is the law, I believe I may say without question, that any time within 20 years after the house is built, the owner of the adjacent soil, may with perfect legality dig that soil away, and allow his neighbour’s house, if supported by it, to fall in ruins to the ground”.

5. The proposition itself was stated by Ayling an