CHANDER MAHTON Vs. EMPEROR THROUGH RAMASRAY SINGH

JUDGEMENT

(1.) This is a petition in revision on behalf of three men who own the twelve annas proprietary interest in mauza Ashopur Nashirpur and were tried along with two men Chattoo and Bhadai on a charge of theft of crops from plot No. 257 of khata. No. 107 and convicted and sentenced to fines of Bs. 10 each. The complainant wasbarahil of the four anna landlord. The khata was recorded in the record of rights in the name of one Jago Gope, and it is common ground, that he died many years ago without issue.

(2.) The prosecution case was that in 1935 complainant's malik (a lady) brought a rent suit against Chattoo and Bhadai, making the remaining landlords pro forma defendants, that she obtained a rent decree and in execution of that decree purchased the holding, herself and took out dakhal dehani of the land together with the crops standing on it on 25 July 1939. On 12 December 1989, the petitioners and Chattoo and Bhadai took the crop away notwithstanding the protests-of the complainant bafahil. The defence was that the complainant's malik had no right to settle the land with Chattoo and Bhadai, that on Jago Gope's death the land had come into the possession of the petitioners as maliks, and that by a private arrangement among them plot No. 257 had been left in the exclusive possession of the petitioner Ram Chandra or Chander who had grown the crop. The proceedings of the rent suit and execution were assailed as fraudulent, but no evidence seems to have been given on the point. The lower Courts accepted the prosecution story.

(3.) It has been contended on behalf of the petitioners that the conviction is vitiated by the failure of the trial Court to allow the defence to summon and examine a competent clerk of the canal department after the failure of Muhammad Abdur Rauf, D.W. 1, to prove the parchas given by that department. Mr. B.P. Sinha who appears on behalf of the complainant, has, with his usual fairness, conceded that in the facts of this case the accused were entitled to have another clerk of the canal department put into the witness box since it appears that they had originally applied to the Magistrate for calling somebody from the canal department who would be able to prove the khasras and other papers of that department.