K. Ahmad, C.J.
1. The petitioner has been convicted under Section 427 1 P. C. and sentenced to pay a fine of Rs. 100/- in default to undergo R. I. for a period of four months. The dispute in this case relates to plot No. 1290 in village Talpada. The plot in the survey record-of-rights has been recorded in the name of one Anirudha Naik and others. The complainant is admittedly one of the heirs of Anirudha Naik. His claim is that the land had been under his cultivation all along and that in the year 1962 it had been cultivated and sown by him. But despite that on 9-8-62 at about 12 noon the petitioner along with some others came and forcibly uprooted the seedlings sown therein. Hence the prosecution.
The plea taken in defence was that the petitioner was a bhag chasi of one Suka who was the admitted daughter of Harekrushna Naik, one of the heirs of Anirudha Naik, and it was claimed that as Suka was one of the persons entitled to the land, his possession over file same as a bhagchasi was valid and legal. Further, according to the defence, the crop itanding on the disputed land had been sown by the petitioner. In support of this plea of defence, D. Ws. 1 and 2 were examined. Both the Courts below have disbelieved the evidence of these 2 D. Ws. and have accepted the evidence of P. Ws. 1, 2, 3 and 5 in support of the case set up by the prosecution and found that the complainant was in cultivating possession of the land and that the crop in the year in dispute was sown by him. Accordingly the petitioner has been convicted as stated above.
2. On the facts as found I think there is little scope left for holding that the offence, as alleged by the prosecution, was not committed by the petitioner. In a matter like this, the law is well settled that possession is to be decided in the light of the fact as to who had sown the crop. The finding given in the present case, as just stated, is that the crop which was uprooted by the petitioner was sown by the complainant. Definitely an act like this must have been done to put the complainant to loss. Therefore, in my opinion, the conviction ordered against the petitioner is fully established by the evidence of the P. Ws.
3. There is however one point which needs clarification. In paragraph 6 the Court of appeal has observed, 'according to explanation 2 of the Section 425, a mischief be committed by an act affecting property belonging to the person who commits the act So, the appellant cannot be allowed to take the plea that by uprooting the paddy seedlings from his bhag land, he has not committed the offence'. This observation made by the Court of appeal suggests as if the crop on the land which was uprooted on 9-8-62 by the petitioner was sown by him. But this assumption, as it appears from the facts stated in paragraph 6, is inconsistent with the conclusion come to by the Court of appeal in paragraph 5.
Perhaps the facts in paragraph 6 were stated to mean that even if the crop had been sown by the petitioner he would have been nonetheless liable for the offence under Section 427 I. P. C for the simple reason that the crop standing thereon had been destroyed by him. In law this view is not correct. The loss arising out of destruction contemplated by Section 427 I.P.C., must be in reference to some other person and not to the owner himself. Therefore, if the crop on the land had been sown by the petitioner and it had been destroyed by him without any intention of putting anybody else to loss or injury, that by itself would not have amounted to mischief as defined in Section 427 I. P. C This observation has been made here however only to correct the proposition of law laid down in paragraph 6, for, in view of the finding given, this alternative question does not arise for consideration.
4. In the result, therefore, I think there is no substance in the application. It is accordingly dismissed. But in the circumstances of the case it is just and proper that a sum of Rs. 100/- (one hundred) out of the fine, if realised, should be paid to the complainant under Section 545 Cr,. P. C. Accordingly the application is dismissed subject to the modification in the direction made.