The judgment established that the offense of mischief under section 427 of the Indian Penal Code requires the destruction of tangible property and does not extend to the destruction of an easement.

Hemeon—The applicant Punjaji prosecuted the non-applicants Maroti and Ganpat under section 427 of the Indian Penal Code in the Court of the Second Class Magistrate, Morsi, but they were acquitted and he has now come up in revision to this Court.

2. The parties all reside in Ner Pingalai, Morsi taluq, Amravati district, and his case was, briefly stated, to the effect that as a result of destruction by the non-applicants of a drain on the 10th May 1949 which used to carry water to his field, his crop of chilies dried up and 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 and that no loss had accrued to him. The non-applicant Ganpat also declared that he was not in the village on the relevant date. Three witnesses were examined in defense and 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 easement under the purview of section 427, Indian Penal Code, and hence one of the important ingredients of the offence has not been established against the accused persons. The action of the accused is a civil wrong and they cannot be held responsible under section 427, Indian Penal Code.

3. The view of the learned Magistrate was supported by the learned Government Pleader and it seems to me that it was correct. The land in which the alleged breaching of the drain took place between the points G and I in the map Exhibit P-1 belonged to Maroti and 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 said himself or subject to the fact that the drain in question constituted an easement. An easement, however, does not come within the purview of ''property'' in section 425 of the ''Indian Penal Code and in the unreported case entitled Keru (1888) of the Bombay High Court it was held that ''property'' under that section means tangible property capable of being forcibly destroyed, and does not include an easement.

4. In Queen-Empress v. Govinda Punja,1884 ILR(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 v. Emperor, 1930 AIR(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 earth upon that land so that the use becomes either disadvantageous or impossible, that does not amount to mischief within section 425 of the Indian 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.

5. Here, the questions involved are, as the learned Government Pleader pointed out, ones for adjudication by a civil and not by a criminal Court. The learned Magistrate acted properly, therefore, in acquitting the non-applicants, and there is no reason why their re-trial should now be ordered.

6. The application is accordingly dismissed.

Final Result : Dismissed