JUDGMENT Sharfuddin, J. - This is a Rule on the District Magistrate to show cause why the conviction and sentence passed on the Petitioners should not be set aside on the grounds stated in the petition. The Petitioners have been convicted of rioting under sec. 147, I. P. C., and sentenced to nine months' rigorous imprisonment. 2. The common object of the unlawful assembly as stated in the charge was "to obtain possession of some property on Chur Chachalia or to enforce a right to some property on that Chur." 3. The Petitioners are tenants of what is known as the five annas share, while the Opposite Party are said to be the tenants of the bara five annas share. It appears however from the findings of the lower Courts that the tenants of the maliks of the different shares had disputes with regard to some lands situated to the north of a certain line of demarcation fixed by Mr. Lloyd, the former Sub-Divisional Officer, in settling that dispute. This line it seems was fixed in accordance with the thak map. 4. It has been found by the lower Appellate Court that since the settlement of the above dispute, the six annas tenants retained possession of the lands and huts to the south of this line and the five annas tenants, among whom are the present Petitioners, retained possession of lands to the north of this line. 5. It has been found that the tenants of the five annas share have all along been in peaceful occupation and enjoyment of the lands to the north of the line of demarcation ; but it has been contended on behalf of the Opposite Party that they were in actual and physical possession of the land on which the occurrence took place and that as they had been in possession for over twelve hours the Petitioners were not justified in disturbing that possession. 6. It is admitted by both sides that a riot took place with regard to the possession of some land to the north of the line of demarcation. 7. On the findings it is clear that the bara five annas maliks and the six annas maliks were not satisfied with the settlement made by Mr. Lloyd. We find that the maliks of these two shares instituted a suit with regard to some lands to the north of the demarcating line. 7. On the findings it is clear that the bara five annas maliks and the six annas maliks were not satisfied with the settlement made by Mr. Lloyd. We find that the maliks of these two shares instituted a suit with regard to some lands to the north of the demarcating line. They obtained a decree but the decree did not include the land with regard to which the present occurrence took place. 8. The above being clear findings by the lower Appellate Court, the question for decision is whether the Petitioners who were in peaceful occupation of the land in question were justified in coming to the place, prepared to drive away the trespassers. This brings us to the incidents that took place during the few hours during which the Opposite Party allege possession of the land. 9. The findings by the lower Appellate Court with regard to this part of the case are :-- (i) That the Opposite Party began to erect some huts on the land in question stealthily in the darkness of the night before the present occurrence. (ii) At break of day the present Petitioners with some others who had been in peaceful occupation of the land on coming to know what was happening came to the place fully armed in order to drive off the trepassers. The result was that there was a free fight between the parties. In this occurrence both sides were wounded and both sides have been convicted and sentenced. 10. It appears that a large number of the Appellants received injuries and had to be detained in the hospital for a number of days. There can be no doubt on the findings that the Opposite Party were trespassers on the land in question. The whole question resolves itself into this--had the Petitioners, who were in possession of the land in question, when the Opposite Party had stealthily erected some huts under the cover of night, any right to come to the spot prepared to turn out the Opposite Party who were at dawn found by them still engaged in erecting more huts. 11. In the present case a charge was framed only under sec. 147, I. P. C., and not under any of the sections of the Code that define various kinds of hurt. 12. The law relating to the right of private defence is in secs. 11. In the present case a charge was framed only under sec. 147, I. P. C., and not under any of the sections of the Code that define various kinds of hurt. 12. The law relating to the right of private defence is in secs. 96 to 106 of the Indian Penal Code. Sec. 99 provides that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Sec. 104 of the Indian Penal Code provides that if the offence, the committing of which or the attempt to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the preceding section, that right does not extend to the voluntary causing of death but does extend, subject to the restrictions mentioned in sec. 99, to the voluntary causing to the wrong-doer of any harm other than death. 13. The whole question therefore really narrows itself into this, whether the Petitioners had time to have recourse to the public authorities. We are of opinion that they had not. The construction of huts began at night and stealthily ; the Petitioners along with others having come to know what was happening on the land of which they were in peaceful possession, go out prepared to turn out the trespassers from the land. If they had allowed, without any reasonable cause, a few days to elapse and then opposed the trespassers by force they would not have been justified in doing so as there would in that case have been ample time to have recourse to the public authorities. The authorities placed before us, where the accused had been sleeping over their rights and had allowed the Opposite Party to remain in possession without any attempt on their part to oust them, would not avail the Opposite Party of the present case, inasmuch as the present Petitioners availed themselves of the right given to them by law at the very earliest opportunity. We have been referred to the case of Moher Sheikh v. Queen-Empress I. L. R. 21 Cal. 392 (1893). We have been referred to the case of Moher Sheikh v. Queen-Empress I. L. R. 21 Cal. 392 (1893). In this reported case the Appellants had acquiesced in their dispossession for five days before they went armed to oust the trespasser and it was, we think rightly, held that they had lost the right of private defence. We have however a recent authority of this Court, namely, the case of Kabiruddin v. Emperor I. L. R. 35 Cal. 368 (1908), where it was held that "there is no right of private defence where two parties arm themselves for a fight to enforce their right or supposed right, and deliberately engage in large numbers in a fight. In such a case if it is not shown that the accused were acting within the legal limits of the right of private defence, it does not matter which party was the first to attack." It has been contended on behalf of the Opposite Party that they had been in possession for about 14 hours and hence they had the right to remain there and the Petitioners had no right forcibly to turn them out. The right of private defence would become a farce if it depended on a race between two factions to see who should arrive first. In this reported case it was found that there was ample opportunity to seek the protection of the authorities as there was no pressing necessity for repairing the embankment. In a case under sec. 9 of the Specific Relief Act it has been held that if a party has been in peaceful and uninterrupted occupation which has extended over a sufficient length of time, the inference may properly be drawn that he was in possession. This was so held in the case of Raj Krishna Parui v. Muktaram Das 12 C. L. J. 605 (1910). If the party dispossessed shows by his conduct that he has acquiesced in his dispossession, he loses the right of private defence. In the case of Browne v. Dawson 12 Ad. and Ell. This was so held in the case of Raj Krishna Parui v. Muktaram Das 12 C. L. J. 605 (1910). If the party dispossessed shows by his conduct that he has acquiesced in his dispossession, he loses the right of private defence. In the case of Browne v. Dawson 12 Ad. and Ell. 624 (1840), the learned Chief Justice observed "that a mere trespasser could not by the very act of trespass, immediately and without acquiescence, give himself what the law understood by possession against the person whom he ejected and drive him to produce his title." The above cases are no doubt civil cases but the principle involved is identical. 14. For the above reasons we are of opinion that taking into consideration that the Petitioners were in actual physical possession of the property in question, that they took the earliest opportunity to exercise the right of private defence, that they had no time to have recourse to the public authorities and that the injuries inflicted by them were within the limits allowed to the right of private defence, they are not guilty of rioting. We therefore make the Rule absolute and acquit the accused who are Petitioners in this case. Coxe, J. I agree. I have stated the view that I take of the right of private defence in cases of this nature in Appeal No. 573 of 1909 decided on the 12th August 1909. In my opinion the accused in this case on hearing that the huts were being erected on their lands were entitled to go and remove them. If they thought that they would be attacked in so doing they were entitled to go prepared to defend themselves. If they did not intend to cause more hurt than was necessary for defending themselves they were not an unlawful assembly. The circumstances of the case, particularly the amount of harm done to the other side, indicate that they did not intend to exceed the right of private defence. In these circumstances they have not, in my opinion, committed any offence.