Harihar Narain Singh and Others vs Bankery Singh

Rowland, J.—This is an application to revise the judgment of a first class Magistrate convicting the 7 petitioners u/s 379, Penal Code for theft of the paddy crop of plots Nos. 75 and 77 in khata No. 53 of village Mahabalipur Chak in the possession of Bankey Singh. The petitioners were each sentenced to pay a fine of Rs. 50, in default to suffer one months imprisonment. The Sessions Judge declined in revision to make a reference to this Court. It was, the prosecution case that the petitioners who are of the number of landlords in the village brought a mob of about 200 persons to the field and overawed the complainant who-was afraid to remonstrate. The substantial defence was that the field was in the possession of the first three petitioners of whom Harihar and Beni are sons of Saudagar deceased and Baij Nath is the son of Beni. It was not admitted that the crop was cut on the date of the alleged occurrence and the remaining petitioners 4-7 denied that they had any concern with the land or had taken any part in the cutting and removal.

As regards the occurrence, it is said, that g the evidence lacks definiteness as to any overt act of cutting or any specific order being given by any individual accused; but there was sufficient evidence which the Magistrate accepted as to the presence of the 7 petitioners who were standing by and were supervising the cutting and removal of the crop by the large party whom they had brought with them. If the removal amounted to an offence, I think the Magistrate''s finding must be accepted as sufficiently establishing the participation of each of the accused persons who were by their presence encouraging the mob in the act. The Magistrate was entitled on the face of the evidence to regard them all as participants and not disinterested bystanders.

It remains to consider the question of possession as to which it is contended that the finding of the Magistrate cannot be supported. The case for the prosecution was that the field was fakirana land of a raiyat named Hira Lohar in whose name it stands recorded in the record of rights finally published in 1910 and that the said Hira Lohar remained in possession till 1941 when he sold the two fields to Bankey Singh by a registered sale deed Ex. 1. The defence was that the entry of the name of Hira Lohar was incorrect, that this fakirana land was purchased as far back as 1888 by Saudagar Singh the father of the first two petitioners and has all along been in their possession. They have their names entered in Register D as being in possession of rent-free fakirana estate tauji No. 2822. This rent-free tauji register was prepared subsequent to the record of rights. That being so, it was for the prosecution to prove not only that Hira Lohar was in possession in 1910, but that his possession continued and that he was able to put the complainant in possession in 1941. For this Hira Lohar himself would have boen the best witness, but he has not been called. There are no papers showing payment either of cess or of canal dues by Hira in this 30 year interval. The prosecution produces Exs. 4 and 5 challans for cess in the name of Bankey Singh dated November 1941 and June 1942.

Similarly Exs. 3, 10 and 11 relating to canal dues are all in the name of Bankey Singh and are dated 1941 or 1942. As regards these payments, it may be mentioned here that the accused have filed an objection in the canal department against the entry of Bankey''s name and that objection was pending at the time of the trial. This affects the value as evidence of the receipt produced by the complainant. On the other hand, it is conceded that the first two accused have been paying canal dues for series of years in respect of this land.

The Magistrate has rightly attached weight to the record of rights as showing the state of the evidence in 1910, but he lays very great stress on the fact that the party of the accused made no attempt to get the record corrected and regards this as leading to the irresistible conclusion that Hira Lohar had continued in possession. It is, however, by no means conclusive. It may well be that the accused having got their names entered in Register D thought they had done enough. It is clear that they had a claim. Their evidence of title was good and no evidence of title in favour of Hira Lohar has been produced beyond the bare survey entry. It should not be presumed without evidence that Hira Lohar persistently and successfully opposed their claim for all these years. True it is that in respect of certain other lands classified as fakirana petitioners Nos. 4-7 had come to terms with Hira Lohar in 1916 and bought out his perhaps doubtful rights by a sale deed Ex. 6, but that is hardly strong evidence against accused 1-3. It is noticeable that the prosecution witnesses who speak as to complainant''s possession of the field after his purchase have nothing to say as to Hira Lohar''s possession before that purchase. Evidence as to that is wanting except for one line in the cross-examination of complainant himself. The Magistrate has referred to an earlier dispute between Bankey Singh and the accused as evidence of motive; but it is evidence that can point either way.

The fact was that accused 1 and 2 sued Bankey Singh for cash rent asserting that it had been commuted from bhauli by a compromise. The judgment of the suit shows that the Court accepted the fact of a compromise having been entered into, but held that the rent was not effectively changed because all the landlords had not been parties to the compromise. That may well have been a case in which a bona fide dispute was contested in Courts. The fact that Bankey Singh was successful does not warrant the Magistrate in saying that the "suit was obviously maliciouly conceived." That being so, I find it difficult to support the conclusion of the Magistrate that the claim of the accused in the present case also is not bona fide. I notice that the complaint when first presented was referred to a local gentleman for enquiry and the latter took an extension of time in the hope that a compromise might be arrived at between the parties. Agreement, however, could not be effected and the case had to go to trial.

It is contended for the prosecution that even if the accused were confident of their title and past possession, they ought to be convicted on the finding of the Magistrate that this particular crop was grown by the complainant. The question to what extent a bona fide claim of title will avail the accused as a defence has been exhaustively considered in Abdul and Another Vs. Emperor, . the leading case of this High Court on the subject. Generally speaking the question who grew the crop is the first matter to look to, but it is not the only thing in all cases. The question of title though secondary is relevant and so is the state of evidence as regards past possession.

In the present case if the learned Magistrate had appreciated the state of the evidence as to intermediate possession between 1910 and 1941 he might not so confidently have accepted the evidence of complainant''s witnesses regarding the fact of possession on the date of occurrence. It was only in June 1941 that complainant obtained his sale deed. The Magistrate has pointed out that it was only after the complainant''s purchase that any trouble arose with regard to this land. We know that the accused party were claiming it since shortly after the record of rights and this claim must have been either acquiesced in or resisted. I am not prepared to hold that the claim of the accused to present possession on the date of occurrence was mala fide and my conclusion is that they ought not to have been convicted of a criminal offence.

The application will be allowed, the conviction and sentences set aside and the accused acquitted. The fines, if paid, will be refunded.