TARACHAND SAH Vs. EMPEROR

JUDGEMENT

(1.) THE petitioner Tara Chand Sah has been convicted under Section 379-114, I.P.C., and sentenced to pay a fine of Rs. 30 in default to suffer rigorous imprisonment for 20 days. THE remaining three petitioners have been convicted under Section 379, I.P.C., and have each been sentenced to pay a fine of Rs. 20, in default to undergo rigorous imprisonment for a period of 15 days. An appeal against their conviction has been dismissed. THE case against the petitioners was that on 25 October 1939, the other three petitioners under the orders of the petitioner No. 1 cut and removed a sisham tree worth Rs. 25 belonging to the master of the complainant. This tree stood on the gairmazrua land of the malik. THE petitioner No. 1, however, was the mortgagee in possession of the village. THE point taken in revision is that the petitioner No. 1 was in possession of the tree as mortgagee, and consequently he or his servants could not commit theft of that tree. In my opinion, this conviction cannot be sustained. Both the Courts below appear to have been under the impression that the trees of the village were excluded from the mortgage. In that, however, they were clearly wrong. 3. On the contrary, it appears from the terms of the mortgage deed (Ex. 1) that the gairmazrua lands and trees were included in the mortgaged property, and it was merely the right to cut down trees that was excluded. It is stated, amongst the recitals in the mortgage bond, that the mortgaged property inter alia includes 16 annas of village Chitauli, tauzi No. 549, according to the boundaries and descriptions detailed below together with ponds and tanks and pucca wells and areas of zirait and bakasht and gairmazrua lands and trees, fruit bearing and non-fruit bearing. Later on in the deed there is a provision that the mortgagee will not have the right to cut and appropriate the trees. 4. Both the Courts below have interpreted this deed as excluding the trees from the possession of the mortgagee, but manifestly the mortgagee was given possession over the trees, though he was not entitled to cut them down and destroy them. THEre are other ways in which possession over trees might be exercised, such as utilization of fruits and use of small branches and leaves. THE important point is that possession over the trees clearly lay with the mortgagee upon the terms of the deed. This being so, the mortgagee could not commit theft of the tree. It may be that the mortgagee wrongly cut down the tree in question, though his case was that it was not he but some one else who had appropriated this tree. 5. If it was a case of the mortgagee wrongly cutting down the tree, it is one which would be covered by the terms of Section 76, T.P. Act, which provides inter alia, that when, during the continuance of the mortgage, the mortgagee takes possession of. the mortgaged property, he must not commit any act which is destructive or permanently injurious to the property; and if he fails to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this chapter, be debited with the loss, if any occasioned by such failure. This section fully protects the rights of the mortgagor in a case of waste of this kind. 6. It is urged for the opposite party that the case now put forward was not the defence taken at the trial where a bona fide claim of right was, it is alleged, not definitely set up. It may be that the petitioners were not well defended at the trial, and did not put forward a defence which was obviously open to them. THEy cannot be convicted upon a criminal charge merely on that account, since the prosecution must clearly establish its case irrespective of the defence taken. THEre is a remark in the judgment of the lower Appellate Court, which would seem to suggest that the petitioners definitely put forward a defence that they were not in possession of the tree, and that defence witness No. 1 stated that not the mortgagee but the mortgagor was in possession. In this respect also, however, the Court below appears to have made a mistake of record. I have looked into the evidence of defence witness No. 1, and I find that he never stated that the malik was in possession. 7. All he did say was that the gair mazrua land and the trees belonged to the malik, which is of course quite correct but is a different matter. All that the defence did say apparently was that it was not the petitioners but some one else who had taken away the tree. THE defence was not, therefore, inconsistent with the position now taken that the petitioner No. 1 was in possession of the tree as mortgagee. THE application is allowed, the conviction and sentences passed upon the petitioners are set aside, and they are acquitted. THE amount of the fines if paid must be refunded.