KASTUR CHAND Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against a conviction of the petitioner who is of some local importance in Nawadah, under Section 426, Indian Penal Code, and the sentence of fine of Rs. 50 for having committed mischief by cutting away the branches of a nim tree belonging to the District Board of Gaya. In, support of the rule Mr. Baldeo Sahay contends, first, that the petitioner had no "criminal intent" as on the basis of the appellant judgment in a previous case, he had reason to believe that the tree was his; secondly, that the prosecution and the charge having been under Section 379 he could not be convicted under Section 426; and thirdly, that his workmen having been acquitted, he could not himself be convicted on the basis of Section 114, Indian Penal Code. It was not seriously contended by or on behalf of the petitioner that the cutting did not take place under his direction and in his presence.

(2.) The appellate Court has found that the tree did not belong to him, that under no circumstances could he have thought himself justified to cut all the branches as he did, and that he knew that he was causing wrongful damage to the District Board with which he was at variance. It is expedient to set out the history of the matter. The nim tree stands on plot 4268 of the Cadastral Survey of 1916. The Record-of rights shows that plot in the proprietorship of the District Board and in the gair mazruakhatian of the malik in which under the rules residential plots are shown.

(3.) The description is "house with courtyard" with area three cents of an acre and in the column for remarks: In the possession of Sripat and Khuba, sons of Birjuram Bania, one nim tree in possession of District Board, the proprietor. It is a common place that the entry in the Record-of- Rights as to a plot which is a house-site only relates to possession. In the present case the record is definitely that there is divided possession- -the occupant of the house and court-yard is in possession except in so far as the standing tree is concerned, and of the latter, including its site, the District Board is in possession. The District Board being the landlord, it would be for the petitioner to show the extent of his right.