- (1.) P. K. Jain, J. List has been revised. None appears for the parties. Perused the material on record and heard learned AGA.
(2.) THE trial court convicted the revisionist for offence under Section 147, 323,,324,325,149, I. P. C. and sentenced each of mem to pay fine of Rs. 100 each under Section 147,i. P. C. , Rs. 100 each under Sec tion 325/149, I. P. C. and three months SI each under Sections 325/149,i. P. C. and fur ther to pay fine of Rs. 200 each and in default of payment of fine to undergo SI for one month. Criminal Appeal No. 87 of 1982 filed by the revisionists was partly allowed. THE conviction of the revisionist of each court was upheld. However, the order of sentence was modified. Instead of sentenc ing them to imprisonment and payment of fine the appellate court directed them to furnish bonds for being of good behaviour and keeping peace for a period of one year. In this revision the revisionist Raj Pal Singh Nanak, Lakhami, Shishpal, Mahendra and Omi have challenged their conviction and order of sentence passed by the court below. The undisputed facts are that, the complainant party as well as accused party are co-sharers of land on a portion of which the accused were raising construction. The complainant objected to it whereupon Raj Pal Singh assaulted Prahlad with spear and Lakhami, Shishpal, Mahendra ana Omi as saulted Bhonde and Ved Pal with this caus ing them injuries. Defence case was that Raj Pal accused was raising construction over his plot of land. The complainant party as saulted Nanak brother of the accused Raj Pal and Naresh son of Raj Pal. The incident of assault was admitted to both the parties and it was also admitted that both the sides received injuries. It is further admitted that accused party was raising construction to which complainants party objected. The sole question before the court below was as to which of the two parties was aggressor. The Trial court held that the accused party failed to establish their ownership and possession and there fore, they were aggessor. It appears from the record that certain documents were failed by the parties. The appellate court after referring to these documents came to the conclusion that suit for partition of the joint land was filed by the complainant, Bhonda but since the accused party in their written statement alleged that there was mutual agreement defining share of both the parties in the joint holding the complainant got his suit dismissed in default. The appellate court upheld the contention that the mutual settlement between the parties was final and held that from the documentary evidence as well as from oral evidence it was established beyond doubt that the land was in joint possession of the parties and hence neither of the parties was entitled to do an act which could nave ousted other party because in that event both the parties were entitled to possession on every inch of joint land. The appellate court, however, held that the right of private defence can be exercised subject to restriction contained in Section 99 of I. P. C. It was held by the appellate court that the appellants have had enough time to have other remedy and no irreparable loss was being caused hence they hard no right to assault the complainant's party. I think there is no error in the finding of the appel late court. Besides this under Clause 2 of the Section 97, IPC every person has a right to defend his property against any act which is an offence falling under the definition of theft, robbery or criminal trespass or mis chief or which is an attempt to commit theft, robbery or criminal trespass or mischief At tempt to raise construction by co-sharer on a portion of undivided land would not amount to an offence of mischief or criminal trespass. Therefore, the accused party can not have a right of private defence of property, there is no error in the finding arrived at by the appellate court.
(3.) THE writ petition is devoid of merit and is, consequently, dismissed. THE stay order dated 24-4-94 is vacated. Petition dismissed .;