Patna High Court
Sham Lal Lohar vs Emperor on 30 May, 1918
Equivalent citations: 46IND. CAS.409, AIR 1918 PATNA 667
JUDGMENT Jwala Prasad, J.
1. The petitioner has been convicted by the Deputy Magistrate of Motihari under Section 426, Indian Penal Code, and sentenced to a fine of Rs. 15. The mischief said to have been committed by the petitioner consists in cutting and appropriating half a Sisum tree standing upon the occupancy holding of the petitioner. The opposite party is a servant of the landlord of the holding. The rights of the tenant petitioner and of the landlord have been thus set forth in the Survey Record of Rights; "The factory (landlord) shall have a right to half the timber." The other half belongs to the petitioner. The cutting of the branch of the tree is not denied by the accused. Two pleas have been set up:
(1) That the branch was lopped off with a view to increase the length and breadth of the Sisum tree; and (2) that the petitioner had a right to out the trees and appropriate half the timber thereof.
2. The learned Deputy Magistrate held that the branch cut off was practically half the tree and that its girth at the portion out is about 3 cubits and the portion cut off must have been 15 or 16 cubits long. The Magistrate apparently, therefore, disbelieved the defence story that the branch was very small and was out off with the object of improving the growth of the tree; but there is no finding that the branch cut off was not fit to be cut at all or that the cutting of the branch in any way destroyed or diminished the value or the utility of the tree or affected it injuriously within the meaning of Section 425 of the Indian Penal Code. There is no finding on this point by the learned Sessions Judge also, whom the petitioner moved before coming to this Court. A Sisum tree does not bear any fruit and it is grown only with a view to its being out when ready for use. To my mind no mischief can be done unless the branch out off was not fit for the use for which it was out. This view is in consonance with the view expressed in the case of Shakur Mahomed v. Chunder Mohun Sha 21 W.E. Cr. 38. That was a case of a bamboo cutting and it was pointed out that the cutting and removing of the bamboo does not amount to obstruction or other injury as defined in Section 425; and that if the cutting and, removing was done with a dishonest intention, that is with a view of causing wrongful loss to the complainant, the cutting of the bamboo would amount to theft and not mischief. That authority was lately considered by me in the case of Sardar Singh v. Emperor 44, Ind. Cas. 451 : 4 P.L.W. 291 : 19 Cr. L.J. 339. Upon the finding of the Court below, therefore, the conviction under Section 426 cannot be sustained and it is more than doubtful if a case under Section 379, Indian Penal Code, of theft would lie, inasmuch as the petitioner claimed a right to cut the tree and disputed the right of the malik to interfere with that right. The Survey Record of Rights does not show in whom the right of cutting lies; all that it records is that the landlord and the tenant have both an equal share in the timber of trees cut. Under Section 23 of the Bengal Tenancy Act a tenant is entitled to cut trees standing upon his holding and he can only be prevented from so doing on the landlord's showing: a custom contrary to the right of the tenant. The onus of proving such a custom rests upon the landlord. It does not appear from the record that any such custom was set up, pleaded or proved by the landlord in this case; and certainly there is no finding that there was any custom by which the landlord could prevent the tenant from cutting the tree. All that the learned Sessions Judge finds is that as the landlord has a half share in the timber, "trees can only be cut by mutual consent of landlord and tenant." The petitioner disputes this proposition and asserts an absolute right to out the tree without the consent of the landlord. The Survey Record does not dispose of this right claimed by the tenant petitioner and in my opinion the Criminal Court is not competent to decide it. The matter can only be dealt with by the Civil Court. The case to which I have just referred, viz., Sardar Singh V. Emperor 44, Ind. Cas. 451 : 4 P.L.W. 291 : 19 Cr. L.J. 339 seems to agree in all respects with the present case. That was also a case of mischief. The legal position of a tenant, whether a tenure-holder or a raiyat, has been fully discussed by me in that case and I need hardly repeat the reasons given by me in that judgment, which may be referred to and applied to this case.
3. Here the tenant out the tree under a claim of right--it does not matter whether his motive in cutting the tree was mala fide or dishonest as pointed out in the case of Bradford Corporation v. Pickles (1895) A.C. 587: 64 L.J. Ch. 759 : 11 R. 286 : 73 L.T. 353 : 44 W.R. 190 : 60 J.P. 3.
4. Therefore, in point of law no offence appears to have been committed by the petitioner. The dispute is of a civil nature. The conviction is accordingly set aside and the fine, if paid, is directed to be refunded.