SHIB LAL DAS Vs. EMPEROR

JUDGEMENT

(1.) Of these six petitioners, Shib Lal Das and Kak Chand Das are related to each other as uncle and nephew, and hold the daristimrari of mouza Saura, and the other four are their servants. These latter have been convicted under Section 379, and fined Rs. 10 each and the first two have been convicted under that section read with Section 114 and sentenced to fines of Rs. 15 each. This was in respect of the cutting down of a mango tree in a bamboo clump in the mouza. The prosecution case was that it was the istimrardar and not the daristimrardar that was entitled to the timber of the trees standing on the plot. This was supported, among other things, by an entry in the Record of Rights. The only defence that it is now material to state was that the petitioners had acted in the exercise of a bona fide claim of right, having cut down trees on two previous occasions without permission from istimrardars and having on the present occasion cut the tree down openly on two days.

(2.) It has been urged on behalf of the petitioners that there should have been no conviction of theft in the present case because of their bona fide claim to the timber. I asked learned Counsel on what materials this claim was grounded, for he does not dispute the fact that the Record of Rights is entirely in favour of the istimrardar and against the daristimrardars. The answer that was given was that the trees had been openly cut down by the daristimrardars sometime ago and that on the present occasion the petitioners did not act like thieves at night, but took the timber openly. As to the former of these circumstances, the lower Courts were not satisfied that timber had been previously appropriated by daristimrardars as of right.

(3.) The learned District Magistrate who heard the appeal says that he was not convinced from the evidence of the two defence witnesses who were called on this point that the landlord knew anything about the cutting of the trees even if it were a fact or, as he had put it earlier, that it did not follow from the action of the petitioners that they had out the tree within his knowledge. The second consideration referred to by learned Counsel is obviously insufficient to found a bona fide claim of right upon. Thefts are not always committed secretly, and the instances of the pick-pocket, the shop-lifter, the house-breaker, etc., given by Woodroffe, J., in the well-known case of Hari Bhuimali V/s. Emperor, (1905) 9 CWN 974, were, as pointed out by Fazl Ali, J., in Abdul V/s. Emperor, 1929 Pat 86, but extreme cases in which no claim of title could be possibly involved.