Judgment :- 1. This revision petition has been filed by accused 1 to 24 who have been convicted by the Additional First class Magistrate, Meenachil for offences punishable under S.427 and 447 of the Penal Code. Accused 1, 2 and 4 were in addition found guilty & convicted under S.324 I.P.C. pw.1 is a medical practitioner who is living in a rented building at Kollamppally junction in Lalam Village in Meenachil Taluk. He purchased a plot of land by name Kollamppally purayidom in the name of his wife under a sale deed Ext. P5. He then started construction of the basement for a nursing home. The adjoining property belongs to the 25th accused who has been acquitted in the case. The prosecution case is that at the instance of the 25th accused the other accused who are his dependants formed themselves into an unlawful assembly and demolished the basement. On information received pw.1 went and objected and it is alleged that accused 1, 2 and 4 beat pw.1 with iron rods. pw. 3 who was in the road rushed up to the place and removed pw.1 to his dispensary. pw.1 after some time went to his relation and at 7 p. m. the same day filed the complaint before the Meenachil police station. The accused denied the commission of the offence. On a consideration of the evidence learned Magistrate found the petitioners guilty of the offences under S.447 and 427 I. P. C., and accused 1, 2 and 4 of the offence punishable under S.324 I. P. C., and sentenced them to varying terms of imprisonment. The 25th accused who was charged for abetment of the offence was acquitted. On appeal the learned Additional Sessions Judge of Kottayam, on a reappraisal of the evidence, agreed with the conclusions of the learned Magistrate and confirmed the conviction and sentence. Aggrieved with the order they have come up in revision. 2. The first question that arises for decision is whether the property on which the basement had been put up and on which trespass is said to have been committed is in the possession of pw.1. Aggrieved with the order they have come up in revision. 2. The first question that arises for decision is whether the property on which the basement had been put up and on which trespass is said to have been committed is in the possession of pw.1. It is a portion of the property comprised in S. No. 276/7 of the Lalam Village and is bounded on the west by the Palai-Thodupuzha road, on the south by a narrow lane and on the east and north by portions of the same survery number in the possession of the 25th accused. This property originally belonged to Kollamparambil Sankaran. As early as 1032 one fourth of the property had already been sold to one Kunjan Krishnan and Kotha Kochupennu. In 1093 the sons of Sankaran partitioned the remaining three fourth of the property under Ext. P. 4. The extent shown in Ext. P4 was 3 acres and 82 cents which was the extent of the entire property. One Chacko Mathai got the rights of four out of the six sons and also the rights of Kunjan Krishnan and Kotha Kochupennu. He in turn assigned his rights to the 25th accused under Ext. P-10 sale deed, reserving the extent of 13 cents at the extreme south for himself. Kuttan one of the six sharers purchased the share of his brother and sold what he got to pw.1 under Ext. P1 in December 1961. Ext. D4 Thandaper account shows that the two plots which were purchased by pw.1 from Kuttan had only an extent of 36 cents instead of 48 cents, and 56 cents instead of 75 cents shown in the documents. The payment of tax noted in Ext. D4 also shows that tax was being paid only for an extent of 36 and 56 cents. Ext. D8 chitta would show that the 6 sons of Sankaran had patta only for 3/4th of the property and the patta for the remaining 1/4th was in the name of Kunjan Krishnan and Kotha Kochupennu the vendees under Ext. D. 10. It is, therefore, contended for the petitioners that pw.1 could not claim title for any portion in excess of 36 and 56 cents and that the portion where the basement has been put up belongs to the 25th accused. D. 10. It is, therefore, contended for the petitioners that pw.1 could not claim title for any portion in excess of 36 and 56 cents and that the portion where the basement has been put up belongs to the 25th accused. Whether pw.1 could claim only 36 and 56 cents and whether the excess portions in the possession of pw.1 really belongs to the 25th accused are matters which have to be gone into in the civil suit that is said to be pending. Here the only question that would arise for decision is whether pw.1 is in possession of the property over which the basement had been put up. On the 7th March the 25th accused applied to the revenue authorities for measuring and demarcating the respective properties and on the 10th March he filed a civil suit in the Meenachil Munsiff Court O. S.61/62 for the declaration of his title and possession over a narrow strip of land on the north and east of his property and for a permanent injunction restraining pw.1 from putting up a boundary wall and other structures. An exparte interim injunction order was also obtained. On 12 31962 pw.1 entered appearance and opposed the application for injunction and the matter was pending decision of the court. On 16 41962 the 25th accused filed a criminal complaint before the First Class Magistrate,' Meenachil as C. C. 74/62 against pw.1 and others alleging that they trespassed and cut a jack tree and two areca trees from the property which is concerned in the civil case. It was when all these matters were pending adjudication that accused 1 to 24 who had no claim to the property trespassed and demolished the basement. 3. The evidence of pws. 2, 3, 4 and 5 besides the evidence of the complainant pw.1 would show that it was pw.1 who was in actual possession of the property and had constructed the basement. Witnesses speak of well defined boundaries enclosing pw.1's property. They have given evidence that there were fencing on both the northern and eastern sides. All the witnesses are uniform in saying that it was within this property that the basement had been put up. They are all neighbours and nothing has been brought out in their cross-examination to discredit their evidence. They have given evidence that there were fencing on both the northern and eastern sides. All the witnesses are uniform in saying that it was within this property that the basement had been put up. They are all neighbours and nothing has been brought out in their cross-examination to discredit their evidence. Their evidence is also in conformity with the report of the commissioner appointed by the court in O. S.61/62. The commissioner has reported about the presence of a row of stums of what appeared as 'Veli Pathal'. There can therefore be no doubt that pw. 1 is in actual possession of this property. 4. Learned counsel for the petitioners have vehemently argued that in view of the pendency of the civil case no criminal offence would lie and in any view of the case the entry must be taken to be in the exercise of the bonafide claim of right which would negative mens rea. The entry if it is in the exercise of a bonafide claim of right is a good defence. But mere pretence of a claim is not sufficient. There must be good faith and there can be no doubt that in this case good faith is essentially lacking. The plea of private defence will not avail because what is protected is maintenance of right and not enforcement of right. If the 25th accused had felt that the basement was being put up in the property belonging to him he could have objected at the time it was being put up, but he cannot take the law into his own hands and get his men to trespass on the property to reduce the property to possession and demolish the structures that had clearly been put up by pw. 1, especially when he had already approached the civil court for necessary relief. 5. Another argument raised was that the demolition of the basement constructed in the property of the 25th accused without his consent and without any right to do so would not amount to an offence of mischief because the loss that was caused is not wrongful loss. In the first place the evidence is that the plot where the basement was put up is actually in the possession of pw. 1. In the first place the evidence is that the plot where the basement was put up is actually in the possession of pw. 1. Secondly, even if the owner of the land has a right to eject the trespasser he has no right to destroy whatever property of the trespasser the owner may find on the land. In Gour's Penal Law of India, 7th Edn. Vol. 3 page 2273 it is stated: "If the trespasser be found using the owner's tools on the land trespassed upon, he may destroy them, for the tools are his own. But if the tools belonged to the trespasser he might be guilty of mischief if he destroyed them, though they were being used upon his land. The complainant held land of the accused and his lease terminated though he continued to hold on, but he was found to have no right and was in fact a trespasser. The accused went up to him and snatched his ropes used for watering the land and as protest against his possession threw them into the well, thereupon he was convicted of this offence, and his conviction was affirmed by Batty, J., who held the act of the accused to be unjustifiable adding: "The applicant's pleader, I understand, is unable to contend that if a trespasser left his watch in the room of another person, that would justify that other person in smashing the watch or throwing it down a well." The complainant dug a well on his land and the accused, five in number, thinking without any proper enquiry that the land was theirs, entered upon the land and destroyed the well. It was held that even if the accused believed in good faith that the well was in the land of one of them and that the complainant was merely a trespasser, the accused had no right whatever to damage the complainant's property in the manner they did and that all of them were guilty of an offence under S.426 Vide the decision in Abdul Hussain Ibrahimji (44. Cr. L. J. 654)" So the act of demolition would certainly amount to an offence of mischief. As to who among the accused had actually committed the offence of mischief pws.1, 2, 3, 4 and 7 have sworn that they saw accused 1 to 24 demolishing the basement. pw. 5 no doubt did not identify all the persons. Cr. L. J. 654)" So the act of demolition would certainly amount to an offence of mischief. As to who among the accused had actually committed the offence of mischief pws.1, 2, 3, 4 and 7 have sworn that they saw accused 1 to 24 demolishing the basement. pw. 5 no doubt did not identify all the persons. Learned State Prosecutor has rightly pointed out that these witnesses have been believed by the courts below and no grounds exist I or distrusting their testimony. 6. Now coming to the offence under S.324 I. P. C., the prosecution relies on the evidence of pws.1 to 4 and 7. That pw.1 sustained injuries though not very serious is amply proved by the medical certificate Ext. P7 and the doctor's evidence. When pw.1 went to object accused 1 to 5 surrounded him and accused 1, 2 and 4 beat him. The evidence of these witnesses has been believed by the courts below. The learned Sessions Judge in appeal has elaborately discussed the evidence of all the witnesses and considered in detail the arguments raised by the defence. The courts below have accepted their evidence and sitting in revision I find no good grounds to differ from the conclusions reached by the courts below. The conviction has, therefore, only to be confirmed and I do so. 7. As for the sentence it was argued that in any view of the case the sentence awarded is highly excessive. It was represented that accused 1 to 24 have already been in jail for about 10 days before they were released on bail by this court and that it would be hard if they are sent back to jail. Considering the peculiar circumstances of this case, I feel that interests of justice would be sufficiently met by reducing the sentence of imprisonment for three months for the offence under S.427 I. P. C., to the period of imprisonment already undergone, but would in addition sentence each of the accused to pay a fine of Rs. 50/-. No separate sentence is called for, for the offence of criminal trespass under S.447 I. P. C. and the sentence of fine awarded for the offence is set aside. 50/-. No separate sentence is called for, for the offence of criminal trespass under S.447 I. P. C. and the sentence of fine awarded for the offence is set aside. For the offence under S.324 I. P. C. against accused 1, 2, and 4 in view of the trifling nature of the injuries the sentence of rigorous imprisonment for six months is reduced to rigorous imprisonment for two months. With these modifications the revision petition is dismissed. Dismissed.