Kastur Chand vs Emperor

Macpherson, J.—This is an application in revision against a conviction of the petitioner who is of some local importance in Nawadah, u/s 426, Penal Code, and the sentence of fine of Rs. 50 for having committed mischief by cutting away the branches of a nim tree belonging to the District Board of Gaya. In, support of the rule Mr. Baldeo Sahay contends, first, that the petitioner had no "criminal intent" as on the basis of the appellant judgment in a previous case, he had reason to believe that the tree was his; secondly, that the prosecution and the charge having been u/s 379 he could not be convicted u/s 426; and thirdly, that his workmen having been acquitted, he could not himself be convicted on the basis of Section 114, Penal Code. It was not seriously contended by or on behalf of the petitioner that the cutting did not take place under his direction and in his presence.

The appellate Court has found that the tree did not belong to him, that under no circumstances could he have thought himself justified to cut all the branches as he did, and that he knew that he was causing wrongful damage to the District Board with which he was at variance. It is expedient to set out the history of the matter. The nim tree stands on plot 4268 of the Cadastral Survey of 1916. The Record-of rights shows that plot in the proprietorship of the District Board and in the gair mazruakhatian of the malik in which under the rules residential plots are shown.

The description is "house with courtyard" with area three cents of an acre and in the column for remarks:

In the possession of Sripat and Khuba, sons of Birjuram Bania, one nim tree in possession of District Board,

the proprietor. It is a common place that the entry in the Record-of-Rights as to a plot which is a house-site only relates to possession. In the present case the record is definitely that there is divided possession--the occupant of the house and court-yard is in possession except in so far as the standing tree is concerned, and of the latter, including its site, the District Board is in possession. The District Board being the landlord, it would be for the petitioner to show the extent of his right.

It is in accordance with experience that under no circumstances would the District Board in. settling its roadside land part with the roadside trees which are usually grown at great expense, or the site where they grow. Such also is the evidence. The original settlement was with one Mewaram. Not long ago the petitioner''s father Lachminarayan, acquired the plot from the heirs of Siripatram, successor of Mewa, who had a gola there. The space around the tree and to the north of it for 10 or 12 feet was open. The purchaser began to construct a pakka building on the land and in digging the foundations he undermined or otherwise rendered weak the roots of the tree.

He then applied to the District Board on 10th November 1931, to order the removal of the tree, offering to pay the price and stating that he apprehended that the tree which stood opposite to the door of the shop under construction, might fall as a result of digging the new foundations. The District Board overseer called in the police who apparently filled up the trench.

It was found that the purchaser had not applied for mutation of his name, and protection of its roadside trees being the determined policy of the Board, the Chairman''s reply was to direct prosecution of Babu Sugan Chand, the brother of the petitioner, who was regarded as responsible, under the Board''s bye-law 2 for trespassing by means of a building on the road and under bye-law 5 for damaging the nim tree by cutting its roots. Sugan Chand was convicted under bye-law 5 and fined.

On appeal the conviction was set aside on 17th February 1932, by the First Class Magistrate empowered to hear appeals. The material portion of the judgment deplores at length the laches of the trying Magistrate and proceeds:

As he does not explicitly controvert the statements of the defence witnesses that this tree was so situated that it actually grew out of a space of the thatched roof of the old house I cannot disregard the statement of the defence that this is so, and if this is so the tree stands on the land leased to Mewa. If the District Board wish to question Lachminarain''s title they must do so in a proper manner by regular suit in the civil Court, and not under any bye-laws. If there has been an encroachment in addition to (sic) the land leased to Mewa it is most deplorable that the engineering staff should have gone to Court without preparing a map to scale showing with precision not only the encroachment alleged, but also the exact spot on which the tree stands.

This is the judgment referred to as Ex. B. The basis for the conviction now impugned is the occurrence of 9th November 1932. The present petitioner had all the branches of the tree cut by the labourers who were his co-accused. It is quite clear that there were eight branches out of which not more than three overhung the new house which had just been built and apparently none overhung the old house.

The map now filed shows that the plot is to the east of the road with a frontage of about 33 feet and going back about 37 feet of which 11 feet and 8 feet respectively represent the site of the tree. The new building came within a portion of the last mentioned quadrilateral and three of the branches overhung it. Even if it be arguable that it was open to petitioner to erect a house under the overhanging branches and then to cut them because they were overhanging, it is impossible to discern any excuse for cutting the others. Manifestly his real object was to destroy at any cost the tree of the District Board which, he had been unable to induce the District Board to remove. Mr. Baldeo Sahay has strenuously urged his first plea.

But a person commits mischief if he causes destruction of property knowing that he is likely to cause wrongful loss or damage to the public or any person even if an intention to cause that damage is not made out. Furthermore, it is not the fact that he had any reason to believe that the tree was his. No doubt the appellate Court did not take into account the judgment, Ex. B, as for some reason it had not been placed on the record or marked as an exhibit until the record returned to Nawadah after disposal of the appeal. I have however now taken it into consideration. But it is quite clear that all that the appellate Court held was that there could not be a conviction under bye-law 5 because the evidence which the prosecution had, then been able to adduce did not establish that the tree belonged to the District Board. The appellate Court was concerned with nothing else. The remark obiter as to establishing the case in a civil Court could not mislead a man of the intelligence of the petitioner when the petition of October 1931 showed that there was no illusion as to the proprietorship of the tree.

The petitioner wished to get the inconvenient tree removed at any cost and so had it damaged mala fide, well knowing that he really had no right to cut any of its branches, but being prepared to take the risk of the off chance that he might escape on the excuse of the remark in the appellate judgment.

Reference was made to the decision in Maung Po Thaung v. Ma Gyi AIR 1923 Rang 205 for the proposition that the owner or occupier of land which the branches of a tree growing on adjoining land overhang is entitled as of right to remove or to have them removed. In the first place, the proposition is subject to "the absence of any stipulation to the contrary." Here the stipulation was implied that no buildings could be erected upon the land which could interfere with the landlord''s roadside tree.

A part from that the decision appears to be based upon Lakshmi Narain Banerjee v. Tara Prosanna Banerjee (1904) 31 Cal 944. That case dealt with the removal of trees whose branches and roots damaged the plaintiff''s adjoining wall which had existed before the trees were planted, and there is no real similarity to the present case where the tree existed first and the settlement of the land was subject to non-interference with it. A case in point appears in Criminal Reference No. 31 of 1905 of the Calcutta High Court Bittu Ali v. Mungaram Pandit. The accused had been convicted and fined u/s 426, I.P.C., for having cut the branch of a large tree of the complainant in Ranchi town to enable him to raise his house. The judicial Commissioner made a reference on the ground that he had a right to cut the branch which overhung his house.

Reference was made to Hari Krishna v. Shankar Vithal (1894) 19 Bom 420 which had recently been cited by Geidt and Mookherjee. JJ., in Lakshmi Narain Banerjee v. Tara Prosanna Banerjee (1904) 31 Cal 944 for the proposition that the accused was justified in what he did. Their Lordships Bodily and Pargiter, JJ., refused to interfere with the conviction. In my view it is not in all cases that a person is entitled in India to cut away branches which overhung his house. The Ranchi case where a small house had been built under a fine tree and the present case, where land was leased subject to the landlord''s tree remaining intact and never-the less a house was built under the tree damaging it, are in point.

To my mind there is no escape from the conclusion that the petitioner damaged the tree of the District Board knowing that he was likely to cause wrongful loss or damage to the District Board and not only having no right whatever to cut the branches but being quite well aware of the fact, both in respect of the branches which did not overhang his house and also in respect of those under which he had introduced his house on land not in his possession and to take the risk on the offchance of getting away with it and getting rid of the inconvenient tree. The first plea fails.

The second plea also cannot prevail. It was not necessary to frame a charge u/s 426. The appellant moreover knew that he was being tried for cutting away the branches of the roadside tree and thereby knowingly causing loss to the District Board, and he has not been prejudiced in his trial. Though this is not necessary, it might even be argued that in a case like the present Section 426 is practically a minor offence to Section 379, the only difference being that the cutting was done without the intention of appropriating the branches. The third point requires no discussion. The appellate Court no doubt refers to Section 114, Penal Code, but unnecessarily as the petitioner directly caused the destruction of the property of the District Board through his workmen and committed the offence defined u/s 425 and punishable u/s 426. The application is without merit and the rule is discharged.

An enquiry will be made by or under the orders of the District Magistrate with a view to such action as may be expedient in respect of the copy of the judgment of 17th February 1932, which has apparently been inserted in the record after the appellate order of 30th June 1933, a signature of the Magistrate (without date) being affixed to it both as Ex. A and as EB (though Ex. A is actually another document so marked on 15th March) and the table of contents being also altered to include it as Ex. B.