BANKA NATH Vs. ABDUL KADIR

JUDGEMENT

(1.) Three persons, Abdul Kadir, Maghful Kha and Majaf Kha have been convicted at a summary trial held by an Honorary Magistrate, Mr. S.M. Chaudhury, under Section 379 of the Indian Penal Code, for theft of paddy worth Rs. 20. Each of the said three persons has been sentenced to pay a fine of Rs. 15, in default to suffer five weeks rigorous imprisonment.

(2.) The case of the complainant, Banka Nath, is that the said three persons had cut and removed paddy from a plot of land (plot No. 180) which was in his possession as a bhagidar under one Hem Nalini De, wife of Devendra Chandra Dey, the paddy having been grown by him. He produced documentary evidence to show that the land belonged, to Hem Nalini and to prove his possession, he examined some witness and proved a registered kabuliyat given by him in favour of Hem Nalini.

(3.) The defence proved the following facts. Rashid Khan and others instituted a suit for partition against Abdul Kadir and others and by the decree passed therein plot No. 180 and other plots were allotted to Abdul Kadir, but as the latter could not pay the costs of that suit the lands allotted to him were sold by the Court and at the Court sale Abdul Kadir's brother- in-law Mahomed Ali purchased the same, took possession of the lands purchased by him and that at his instance and with his direction the paddy was cut and removed. On these facts the defence urged that the paddy was not in the possession of the complainant, but in law was in the possession of Mohammad Ali and hence there was no theft. They also took the plea that the act of cutting and removing the paddy was not done dishonestly but under a bona fide claim of right. The learned Magistrate found that possession of the land and paddy at the time of removal was in the complainant and that there was no bona fide claim of right, the claim being a mere pretence.