Sobha Mahton and Another vs King-Emperor

Macpherson, J.—The facts in this case are as follows: The landlord of the village sued Mt. Meghia and the petitioners of whom Rewa Mahton is her son-in-law and Sobha Mahton is his uncle, for possession of a holding which Meghia who was the raiyat had conveyed to Rewa, in the absence, it was alleged, of a custom in the village of transferability of occupancy holdings. The suit was decreed on the 28th October last and an appeal against the decision was filed by Meghia on the 14th November. On the 22nd November the decree-holder obtained delivery of the possession and on the 25th the petitioners are alleged to have cut and removed the crops growing on the holding. Upon the complaint of the landlord''s servant, the Sub-Deputy Magistrate of Bihar on the 31st March convicted the petitioners of theft and sentenced them to fine. A few days later the appeal on the suit was decreed and on the 4th May the appeal late Court upheld the conviction u/s 379 but reduced the sentence to a fine of Rs. 5.

The present rule was granted for the consideration of the conviction and sentence. Daring the hearing it was intimated that a second appeal had just been filed in the High Court.

In support of the Rule it is urged that the accused took what was their own property and in any case did not act dishonestly because they took the crop under a bona fide claim that it was their own property. The learned Government Advocate contends that the question of their intention is to be judged by the position on the 25th November. No doubt that is correct and a person may commit theft of his own property as indicated in illustrations (j) and (k) to Section 378.

But in spite of the delivery of possession of the field which in law put the landlord in possession of the standing crop also, I am of opinion that in the circumstances of this particular case Meghia and the petitioners were under the impression that the standing crop was Meghia''s property, not only because she had grown it but also because the right to the field on which it stood was the subject of an appeal filed prior to the date of delivery of possession. Petitioners had in fact no idea of causing wrongful gain to Meghia or wrongful loss to the decree-holder. Section 379 is always of most doubtful applicability to this class of cases in which the question of property is only in course of determination in a civil suit.

The Rule is made absolute and the convictions and sentences are set aside. The fines, if paid, will be refunded.