Patna High Court
Sardar Singh And Anr. vs Emperor on 19 December, 1917
Equivalent citations: 44IND. CAS.451, AIR 1918 PATNA 323
JUDGMENT Jwala Prasad, J.
1. This is an application against the order of the Sub-Divisional Magistrate of Banka, dated the 22nd June 1917, convicting the petitioners under Section 426 of the Indian Penal Code.
2. The petitioner No. 2 is the servant of petitioner No. 1. The conviction is in respect of a bar tree said to have been out by the petitioners in Mauza Ghutia. The plaintiff's master is the mukarraridar of this village. The accused No. 1 was recorded in the Survey Record of Rights as malguzar is tamrari lekin mukarrari nahin. The Record of Rights was finally published in 1917. The plaintiff's master, Jamna Prasad, disputed the correctness of this entry as to the status of the petitioner No. 1 under Section 106 of the Bengal Tenancy Act, but the Assistant Settlement Officer by his decision of October 14th, 1909, dismissed the claim of Jamna Prasad and upheld the entry in the Survey Record.
3. The basis of the claim of Jamna Prasad was that the petitioner No. 1 had only a lease of the village for a temporary period and that he was only a mustajir, or lessee, and had no right to remain in possession of the village after the expiry of the lease. He wanted a note to that effect to be made in the Survey Record of Rights. The entry in the Record of Rights-amounts to a recognition of petitioner No. 1 as a permanent tenure holder.
4. The Assistant Settlement Officer came to the conclusion that the petitioner was in possession of the village by virtue of a patta executed in his favour in 1262. This patta is referred to in the judgment of the Magistrate as Exhibit A. By this patta the petitioner obtained right and possession over the village with the trees and the jungles situate therein. The petitioners claimed before the Assistant Settlement Officer that they had been cultivating the lands of the village and had reclaimed jungles. This was accepted by the Assistant Settlement Officer and it was further held that the subsequent kabuliyats said to have been executed by the petitioners did not affect their title, which was corrected by the original lease of 1262. Two of these kabuliyats have been referred to in the judgment of the Assistant Settlement Officer as Exhibits 2 and 3, namely, the one dated 24th Pans 1305 and the other 20th Kartik 1315. The latter one was an application made by the petitioner to Jamna Prasad for permission to cut down two sal trees for the purpose of using the timber thereof in the house which was being constructed by him. The trees are said to be situate in Ranicharna and in the orchard of Kuli Roy of Singahua. There is no mention of Ghutia in this application and it is not known, therefore, whether the application at all related to any trees in the village in question. The decision of the Assistant Settlement Officer was upheld in appeal by the District Judge of Bhagalpur on 30th March 1910.
5. In or about the year 1913 Jamna Prasad brought a civil suit against Sukh Lal and others for recovery of Rs. 120, price of six sal trees said to have been cut and removed by the defendants from the Bahera jungle. The suit was dismissed by the Munsif by his judgment of the 19th February 1914, upon the ground that it was not proved that the trees were at all out by the defendants. It was in that case alleged by the plaintiff's witnesses that one Biranchi out the trees. The Munsif held that Biranchi was not a defendant and therefore the plaintiffs could not obtain any decree in that case. The Munsif, however, upon issue No. 3, which runs as follows: Are the tenants of the plaintiff to take wood from his jungle without payment of any price under any custom," held that the defendants could not take wood without payment of price. Before discussing this issue, the Munsif prefaced it by saying that it is unnecessary to decide it inasmuch as the suit of the plaintiff was dismissed upon facts. The judgment of the Munsif has also been referred to in the judgment of the Sub-Divisional Magistrate in this case.
6. The above is in short the history regarding the dispute between the parties as to the status of the petitioner No. 1 in the village and as to the petitioners' right in the trees situate in that village.
7. The present occurrence is said to have taken place on the 16th February 1917. It is said that the petitioners cut a branch of a bar tree. Jamna Prasad the plaintiff lodged an information before the Police. On 6th March 1917 the Magistrate declined to issue warrants against the petitioners upon the ground that he felt "doubt if the branches had been out dishonestly" by the petitioners and held a judicial enquiry. On 5th April 1917 he looked into the survey papers referred to above and other evidence adduced by the complainant and after hearing both the parties passed the following order:
It appears that the bar or bargad tree with respect to which am offence is said to have been committed stands on a piece of holding belonging to Jhajhu Mahto. The holding is in Mauza Tona Pathar, which is within the mustajri of the accused Sardar Singh. The complainant's master Thakur Jamna Prasad is the mukarraridar of the Mauza. In the Survey Records it is not mentioned in whose possession the bargad tree is. In the absence of any evidence in the Survey Records to the contrary the tree may be said to be in the holding of Jhajhu Mahto or his representative. The tree does not bear any fruit which is taken by anybody. It is extremely doubtful that the mukarraridar is in the possession of a tree standing on the holding of another. It is questionable as to whether the tenant, or the tenure-holder (the accused) or the superior landlord (the complainant's master) is in actual possession of the tree the branches of which have been out. I cannot, therefore, hold that the accused who is the tenure-holder dishonestly out the tree from the possession of the mukarraridar and so no cognizable offence is made out. Enter non-cognizable Section 426, Indian Penal Code.
8. Nine days after the above order on the 14th of April the complainant filed a complaint before the same Magistrate. In his statement on oath recorded by the Magistrate on the back of the complainant's petition he admitted that ' information was lodged at the Thana but as the case did not proceed I have come to complain." The Sub-Divisional Magistrate straightway upon that complaint ordered the accused to be summoned under Section 426, Indian Penal Code. The complainant stated to him that the matter did not proceed on the information given to him by the Police. The Magistrate had upon a judicial enquiry come to the conclusion that the possession of the tree was not proved to be with the complainant and there was no dishonest intention of the accused in cutting away the tree, I do not know why in the face of his own finding the Sub-Divisional Magistrate thought it fit upon the complainant's petition in respect of the same occurrence to issue summons against the accused persons. It is also not known whether the Magistrate looked into his former order at all, or in the course of the hearing of the present case whether his attention was ever drawn to it. In the judgment in-revision the Sub-Divisional Magistrate does not make any reference to his order of the 5th April 1917 referred to above and surely it was expected that he would either before summoning the accused, or in the judgment, give reasons for his taking a different view from what he had taken at the earlier stage of the case. I am, therefore, entitled to infer from this that if the Magistrate had known of his other order refusing to take cognizance of the offence he would not have summoned the accused in this case. The cutting of the tree is admitted. The question before the Magistrate, therefore, was as to whether the cutting of the tree constituted mischief under Section 425, Indian Penal Code. All that the Magistrate finds is that the accused knew that they had no right to cut the tree and, therefore, they acted dishonestly in doing so. This finding is based upon the judgment of the Munsif referred to above of February 1914 and upon the kabuliyat of 1305 and upon the application made by the petitioner No. 1. The two latter documents may be dispensed with summarily. The first document has been already held by the Assistant Settlement Officer as not sufficient to destroy the right of the petitioner which he had got in the village by virtue of the patta of 1263. The application, as already said above, does not refer at all to this village and even if it did, we do not know the circumstances under which that application was made and it cannot possibly take away the right that the petitioner had in the village and in the trees situate therein.
9. The only document of any importance is the judgment of the Munsif. This judgment referred to jungle Bahera and to which the petitioners were not parties at all. It has not been at all contended by the learned Vakil for the respondent that the judgment is at all binding upon the petitioners. At the best the judgment may be admissible evidence under Section 13 of the Evidence Act, as an instance of a transaction in which the custom was set up by one of the interested parties.
10. The question here is whether the dispute that arose between the petitioner and the opposite party in the survey and thereafter as regards their respective rights in the village has at all been settled by any competent Court. The judgment of the Munsif is not at all binding and cannot be taken as filially settling the dispute. The Assistant Settlement Officer's judgment upheld by the Special Judge under Section 106 is a judgment inter paries. It decides once for all the status that the accused had in the village. The status was that of a permanent tenure-holder. The right of the permanent tenure-holder cannot be disputed as regards the trees situate within the tenure. In the case of an occupancy raiyat under Section 23 of the Bengal Tenancy Act a tenant is entitled to cut down the trees. He can only be prevented from doing so by the landlord showing a custom contrary to the right of the tenant. The principle underlying this section applies with greater force in the case of a permanent tenure-holder. It is not for me at this stage to say anything as to the view that was taken by the Munsif in that case, but it is sufficient to say that the onus of the custom lies upon the landlord. The tree in question stands upon plot No. 1090, khata No. 79, and the entry is ghair mazrua malguzar. The word malguzar is important, for the entry against the name of the petitioner is malguzar istumbari. The entry, therefore, means that No. 1090 was recorded as being in the khas possession of the petitioner as a tenure-holder thereof. No tree has been shown as standing in this particular plot in the Survey Record-of-Rights. This is explained by the petitioners by saying that the tree in question was planted on the land subsequent to the Survey Record of Rights which happened in 1907. The complainant has not in this case shown that the tree was planted by him. We have to accept the Survey Record as correct. There was no tree in existence and even supposing for a moment that the right of the mukarraridar was in respect of the tree, he can possibly have no right in the trees that were planted by the man in possession of the land so long as the lease of the petitioner continues. It is not at all the case of the other side that the lease has expired. Only the status is disputed. Whatever the tenant, whether he be a tenure-holder or a lessee, has grown upon the land, that belongs to him, This fact of the case has not at all been noticed by the Sub-Divisional Magistrate. The question is one which could not be decided in any Criminal Court. It is obvious from the history of the dispute between the parties that after the survey the parties are trying to assert their right over the trees in the village and to drive the opposite party to the Civil Court. A Criminal Court should, therefore, be careful in giving any advantage to any of the parties over his adversary.
11. The learned Magistrate admits that the petitioner is in possession of the village. He claims the trees as belonging to him and he has a right to cut the trees. The opposite party has ample opportunity to go to a Civil Court and establish his right. The case is similar to that of Shakur Mahomed v. Chunder Mohun Sha 21 W.R. Cr. 38. I will borrow the language of that decision on the particular point, for it seems to me that every word of it applies to the present case:
Now, as bamboo is a thing which is grown to be out, the cutting and removing it does not amount to its destruction or other injury defined above. If there be any dishonest intention, the act of the offender in causing a wrongful loss to the complainant would amount to theft, and not mischief;" but it seems to me clear from complainant's own statement and certain documents filed by the accused that there is a dispute regarding the title to the land on which the bamboos said to have been cut and removed were situated.
On these grounds, I think, the order of the Deputy Magistrate convicting the accused of mischief is wrong in law, and should be set aside.
12. I have taken pains to give in this judgment at the very outset the facts to show that there is a dispute between the parties. I, therefore, hold that the case was beyond the cognizance of the Criminal Court and outside the scope of Section 425, This is enough to set aside the order of the Sub-Divisional Magistrate.
13. There is one thing more which to my mind goes to show that the conviction should be set aside. The facts found by the Magistrate were such as do not warrant any conviction under Section 425. He does not at all find that the cutting of the tree in question did at all destroy or diminish the dignity or value of it. The petitioner is said to have cut it for the purpose of fuel. If the branch of the tree was fit for fuel, then there was no mischief done to it although theft may have been committed by taking it away from the possession of the complainant's master. There is no finding upon this point. The attention of the Magistrate was not at all directed to this. The above authorities as well as the case of Miras Chowkidar, In the matter of 7 C.W.N. 713, where it was held that the cutting of paddy would not constitute mischief unless it diminished its utility or value on account of its being not ripe, are on all fours with the present case.
14. Upon the above grounds I set aside the conviction and the sentence and the fine, if paid, be refunded.