Patna High Court
Emperor vs Lalu Gope And Ors. on 25 April, 1917
Equivalent citations: 40IND. CAS.335, AIR 1917 PATNA 522
JUDGMENT Mullick, J.
1. This reference has been made by the learned Sessions Judge of Gaya and raises a somewhat interesting point of law.
2. The five petitioners are tenants on the bhaoli danabandi system. It is alleged by the prosecution that on the 10th of December 1916 the petitioners began to cut the ripe paddy from their respective holdings. The servants of the zemindar thereupon remonstrated on the ground that the zemindar had not had time to appraise the crop, but the tenants did not listen and carried away the crop according to some witnesses to their respective threshing floors and according to other witnesses to their houses.
3. On the 12th of December a complaint was lodged on behalf of the zemindar against five petitioners charging them with an offence under Section 424, Indian Penal Code, that is to say committing mischief in respect of their own property in order to cause wrongful loss to the landlord.
4. The defence of the tenants was that the landlord had in fact appraised the crop some seven or eight days before the date of the cutting, but that defence was disbelieved with the result that the Deputy Magistrate of Gaya has convicted the accused and sentenced them to a fine of Rs. 15 each. It appears that after the crop was carried away the landlord on the 19th of December lodged an application under Section 69, Bengal Tenancy Act, before the Collector asking for the appraisement of the crop. There is no evidence before me as to what was the result of that case.
5. The learned Vakil for the petitioner has strenuously contended that there could have been no dishonest intention on the part of the petitioners inasmuch as Section 71, Bengal Tenancy Act, allows the tenants to cut and harvest the produce in due course of husbandary without any interference on the part of the landlord. He also urges that Clause 4, Section 71, declares how the appraisement is to be made, if the tenant removes any portion of the produce in such a manner as to prevent its due appraisement at the proper time.
6. Now Clause 2, section, 71, expressly enacts that a tenant holding on the bhaoli batai system is not entitled to remove the crop from his threshing floor, and it has been held in Euldip Pandey v. Ramnath Singh 35 Ind. Cas. 491; 1 P.L.J. 363j 17 Cr.L.J. 315; (1917) Pat. 71 that if a tenant does so remove the produce he is liable to punishment under Section 424, Indian Penal Code. But, it is contended that the bhaoli danabandi tenant is in a better position and that there is nothing to bar his removing the crop either to the threshing floor or to his house, if this is done in due course of husbandary. I accept this contention so far as it goes, but clearly it is subject to a qualification and that qualification is that before the tenant outs his crop, he must give the landlord reasonable opportunity of appraising it.
7. Here the landlord gives evidence that bis men remonstrate with the tenants at the time of cutting and he denies that he had any opportunity of appraising the crop. The tenants set up the case that the landlord had in fact appraised the crop earlier and that case has been disbelieved. The onus of proving in these circumstances that reasonable opportunity was given to the landlord is upon the tenants. I have gone through the evidence and there is nothing to show that the onus has been discharged.
8. Then it is contended that there could have been no intention to cause wrongful loss to the landlord, for the paddy was stored at the threshing floor. This is not conclusively established by the evidence and even if it had been for the landlord's purpose, such storage would have been useless unless the produce of each field had been separately ticketed so that the landlord might have been able to appraise the outturn of that field. If it had been the intention of the tenants to give reasonable opportunity to the landlord to appraise the crop, they would have stored the produce of each field in order that the landlord might have had no difficulty in knowing what was the outturn per bigha of the plots in question. Reading the proceedings as a whole, I have no doubt that the charge of mala fides against the tenants has been conclusively established.
9. The result, therefore, is that the reference will be disallowed and the conviction and sentence affirmed.
10. Another point which has been argued by the Vakil is that the trial of five tenants holding separate lands in one proceeding is contrary to law. Now that-depends on whether the tenauts acted in concert. If they did so act, the fact that the offence of mischief was committed in respect of different plots in the possession of different persons would be immaterial. For the purpose of the Indian Penal Code only one offence can be said to have been committed, when there is evidence of jointness and concert. In this case there is such evidence and, therefore, the procedure was not vitiated by any irregularity. Under the circumstances it was incumbent upon the accused to show that they did not act in concert and this they have not been able to do.