Ram Brich Lal vs Emperor

Dhavle, J.—In this case a tenant was prosecuted at the instance of his land lord for the it of a barb tree apparently included in his holding. His defence was twofold: (1) that he did not cut the tree on the occasion mentioned by the prosecution, but five or six years previously and because the tree had dried up, and that he had replaced it by another tree; and (2) that as the tree stood on his raiyati land, he had a right to cut it and remove the wood according to the village custom. The Magistrate overruled these pleas and sentenced the petitioner under S. 379 to a fine of Rs. 35 with one month''s rigorous imprisonment in default. An application was made to the Sessions Judge for referring the matter to this Court but was summarily rejected. The learned advocate for the petitioner has contended that as the tree stood on the holding of the petitioner and the offence of theft is an offence against possession, the petitioner cannot be held guilty of theft even if the prosecution story is believed. This contention is supported by Shaikh Garib Haji Vs. Muchiram Shau and Another, . The learned advocate has also pointed out how the trying Magistrate has fallen into more than one error regarding the tenant''s right to cut down trees on his own holding. It is however not necessary to go into those matters in detail, for the offence of theft being an offence against possession and the tenant being unquestionably in possession of the tree, the conviction must fail.

It may however be usefully observed that the settled interpretation of S. 23, Ben. Ten. Act, is that the occupancy raiyat is entitled to cut down trees standing on his holding unless the landlord can establish a custom prohibiting the cutting down of such trees, and further that where there may arise difficult questions of what a tenant may or may not do to trees standing on his own holding, the criminal law is not the appropriate law to apply. The rule is made absolute, and the conviction of the petitioner set aside. The fine, if paid, must be refunded.