BALDEO NARAYAN CHAUDHARY Vs. EMPEROR

JUDGEMENT

(1.) The petitioners, four in number, have been convicted under Section 379, Penal Code, and each fined Rs. 20 on a charge of cutting and removing four trees (total value Rs. 8) situated on a holding in village Larugaon said to be in the possession of Suba Lal Thakur under a lease dating from about 1907 granted to him by a lady named Bahuria Saraswati Kuer. The defence was that the case was false; no such occurrence took place; the prosecution story has been invented in order to put pressure on Bahuria Saraswati Kuar through the accused who are her relatives and servants. Saraswati Bahuria has brought a title suit claiming to recover possession of the land from Suba Lal Thakur on the ground that his lease was a nominal and fictitious transaction. This defence was negatived by both the Courts below.

(2.) The substantial point taken in revision here is that the dispute is a bona fide civil dispute. This has been argued with much ingenuity by Mr. B.C. De; but in fact it is a case which if there were any substance in it ought to have been put forward in the Court below. Mr. De could not show that Saraswati Bahuria Kuar or the accused on her behalf had any bona fide claim to present possession over the land or the trees. It is suggested that according to the custom of this part of the country a raiyat is not entitled to timber and that removal of timber by or on behalf of his landlord cannot therefore amount to theft. This seems to be a novel proposition. So long as the trees stand the raiyat is entitled to use and enjoyment of them, and the landlord is not entitled to disturb that enjoyment. It is suggested that the offence committed should be considered to be mischief only, and not theft if the object was interference with the enjoyment of another rather than the taking of property for one's self. This is in agreement with some decisions of the Calcutta High Court, but unfortunately for the petitioners it seems to me that the question whether the principal object of the criminal act was acquisition of property or interference with another person's enjoyment is primarily a question of fact for the Courts below and ordinarily would not be taken up in revision if the Courts below have concurred in finding that the acts proved and the intention with which they were done constituted the offence of theft.

(3.) In all the circumstances of the case I find no cause to interfere with the decision of the Courts below, and the rule is accordingly discharged.