B.K. Patra, J.
1. This application in revision is directed against an appellate order of the Additional Sessions Judge, Cuttack, upholding the conviction of the petitioners under Section 379 I. P. C. and the sentence of fine of Rs. 250 imposed on each of them. 14 persons including the petitioners were placed on trial before a Magistrate, First Class, Cuttack, on a charge under Section 379 I. P. C. on the allegation that on 23-11-63 between 7 A. M. and 4 P. M., they being armed with lathis, rifles and tentas carried away paddy crops worth Rs. 1300 from plot No. 780 which was in the possession of the opposite party Narendra Naik, and on which the latter had raised paddy crops. All the 14 persons were convicted in the trial court and while each of the3 petitioners was sentenced to pay a fine of Rs. 250 and in default to undergo R. I. for 2 months, the remaining accused persons were sentenced to pay a fine of Rs. 25 each and in default to undergo R. I. for 15 days. On appeal, the Additional Sessions Judge, Cuttack, while confirming the conviction of the petitioners, acquitted the remaining 11 accused persons.
2. Plot No. 780 in mouza Karanji measures 8 acres and it is its northern half of 4 acres which is in dispute in the litigation. This land stood recorded in the settlement papers in the name of one Durga Charan Panda and it is the case of the opposite party Narendra Naik that long ago he got these 4 acres of land on bhag chas basis from Durga Charan. After Durga Charan's death, his two brothers Kanhu Panda and Krushna Prasad Pande jointly inherited the 4 acres of land and on their death it devolved jointly on their widows Jariaki Dibya and Nilamani Dibya. In a family settlement between the two widows, the entire 4 acres of land fell to the share of Janaki Dibya. On 22-6-59 Janaki Dibya sold one acre out of this land under the registered sale deed (Ext. 3) in favour of petitioner No. 1 Anadi Sahu and 2 acres out of this land under the registered sale deed (Ext. A) in favour of the uncle of Kailash petitioner No. 3. Petitioner No. 2 Ganesh is the son of petitioner No. 1 Anadi. The remaining one acre of land was sold by Janaki to one Jagabandhu Tripathy from whom the respondent Narendra purchased it under the kabala Ext. 1 on 29-4-63.
3. Undoubtedly, therefore, the petitioners have acquired title in respect of 3 acres out of the 4 acres of the disputed land under the kabalas Exts. A and B, and it is on the strength of these kabalas that the petitioners now claim to be in khas possession of the 3 acres of land and to have raised paddy crops thereon during the disputed year. Their case is that the opposite party Narendra Naik was neither in possession of the land nor did he raise any crop thereon in 1963.
4. Both the courts below, however arrived at the finding that it is the opposite party Narendra who was the bhag chasi in respect of the disputed land and was in khas possession thereof and had raised the crops on that land in 1963, and that the petitioners had cut and carried away the crops. The contention of the petitioners is that in the facts and circumstances of the case, this finding is not correct and even if it is correct, the petitioners must be deemed to have cut the crops in bona fide exercise of their right to the land. In view of the fact that both the courts below have, on a consideration of the evidence, come to the finding that it is the opposite party whoas bhag chasi was in possession of the land and had raised the crops on the land during the year 1963 and as I find that there is evidence to support the conclusion, I do not find sufficient ground to disturb that finding. The only question for consideration, therefore, is whether the plea of the petitioners that they cut the paddy in bona fide exercise of their right to the property can be sustained.
5. In support of the contention that there was scramble for possession regarding this land, reliance is placed on behalf of the petitioners on several documents filed in this case to show that there was litigation between the parties regarding this land. The first of these documents is Ext. 2 which is an order passed by the O. T. R. Court in a case under Section 14 of the O. T. R. Act instituted by the opposite party Narendra Naik against Durga Prasad Pande, Janaki Dibya and Nilamani Dibya. Section 14 of the O. T. R. Act provides that if in contravention of the provision of the Act a landlord or his agent interferes in any way with the tentant's cultivation of the land, the Collector may, after necessary enquiries, impose on such landlord or his agent a penalty. In that case Narendra Naik (who is opposite party in this case) claimed that he was the bhag tenant in respect of the 4 acres of land appertaining to plot No. 780 and complained that the landlords were disturbing his possession. Ext. 2 shows that while Janaki Dibya, opposite party therein, admitted that Narendra was a bhag chasi, opposite parties Nos. 1 and 3 disputed the existence of such relationship.
The court held that Narendra Naik was the bhag chasi and that the landlord was Durga Charan alone and that the latter had not interfered with his possession. During the pendency of the aforesaid case, a proceeding under Section 145 Cr. P. C. in respect of this very land appears to have been started by the Sub-divisional Magistrate, Cuttack, against Narendra Naik and Sudarsan Tripathy, the authorised agent of Durga Charan Pande. As against an interlocutory order passed by the Magistrate in that case, Sudersan Tripathy filed a revision in the High Court (Ext. 3). Ext. 4 a copy of the order sheet of the High Court shows that on 20-12-1946 Mr. Dasgupta, Advocate appearing for Sudersan Tripathy submitted that the criminal revision had become in-fructuous and might be dropped and it was argeed by the parties that Narendra Naik had actually grown crops on the disputed land, the position of Durga Charan being only that of a landlord and that Narendra might, therefore, harvest the crops. In the year 1960, the bhag tenant Narendra Naik deposited the rent in court payable by him in respect of thedisputed land to the landlord Krushna Chandra Mangaraj ' (uncle of petitioner No. 3). Ext. 6 shows that Krushna Chandra Mangaraj had raised some objections, but the Court overruled his objections and directed him to accept the rent deposited in court.
It will thus be seen that repeated attempts made by the petitioners or their predecessor-in-interest to deny that the opposite party is a bhag tenant in respect of the disputed land and to dislodge him therefrom had failed. It is nobody's case that since after Ext. 6 there was any reconciliation between the parties or that the opposite party had amicably given up possession of the disputed land. It is argued on behalf of the petitioners that Ext. 1 disproves the opposite party's case that he was a bhag tenant, because it is argued that if the respondent was really a bhag tenant in respect of the 4 acres of land claimed by him, he would not have purchased under the kabala dated 29-4-63 one acre out of the disputed land from Jagabandhu Tripathy who in his turn had purchased it from Janaki Dibya. There is absolutely no force in this contention, because the opposite party although a bhag tenant in respect of that one acre of land, could still purchase the landlord's share from Jagabandhu Tripathy.
6. In support of the petitioners' case that even if it is found that the opposite party had raised the crops, their action in cutting the same should be deemed to be in bona fide exercise of their right to the land, reliance is placed on the decisions reported in Sita Bewa v. Bimbadhar Rout, (1965) 31 Cut LT 749; Chandi Kumar Das Karmarkar v. Abanidhar Roy, AIR 1965 SC 585 and Pappu v. Damodaran, AIR 1968 Ker 126. In Sita Bewa's case, (1965) 31 Cut LT 749, Das J. held that to sustain a conviction under Section 379, it is necessary to prove the dishonest intention to take out property out of the possession of another, and removal based upon the assertion of a bona fide claim of right does not constitute theft. The claim of right, however, must be an honest one though it may be unfounded in law or may not stand the test of a Civil Court. If, however, the claim is not made in good faith, but is a mere colourable pretence to obtain or to keep possession of such property, it will not be available as a defence.
Whether a claim is bona fide or not is necessarily to be examined in the background of the facts of each case. Mere putting up such a claim would not be sufficient. In that case it was found that the disputed property was claimed by the accused persons as a part of their ancestral property and it was admitted by one of the prosecution witnesses that the property had not been partitioned. In such circumstances, the court held that theclaim put forward by the accused persons cannot be said to be unfounded and re-jected as a mere colourable pretence. In AIR 1965 SC 585 their Lordships held that-
'The ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right. By the expression 'colour of a legal right' is meant not a false pretence but a fair pretence, not a complete absence of claim but a bona fide claim, however weak. If there be in the prisoner any fair pretence of property or right or if it be brought into doubt, the court will direct an acquittal'.
7. That case related to the catching of fish by the accused persons from a tank which the complainant claimed to be in his possession. That tank belonged to the Dutta family under whom the accused persons were recorded as tenants in respect of the property. The complainant's case was that the interest of the Dutta family was sold in a revenue sale and was purchased by Sailesh Chandra Baner-jee and that Banerjee had obtained possession of that tank after a decree in a title suit filed by him against Duttas in which the accused persons were also parties and that thereafter the tank was leased out by Sailesh Chandra Banerjee to the complainant for 3 years. The decree which Banerjee obtained was however an ex parte decree and the accused persons filed an application to set aside that ex parte decree and it was set aside.
An application filed by Banerjee in the High Court to revise this order was dismissed. During these proceedings Banerjee had also given an undertaking that he would not cut trees on the bank till the disposal of the case thereby admitting that there was a dispute in respect of the ownership and possession of the tank.
It is in this background that their Lordships held that although by the setting aside of the ex parte decree the possession would not revert without proceedings for restitution, still the circumstances undoubtedly were such that the accused persons might well have thought that their possession to the tank stood restored. There was thus a real dispute between the parties and in the circumstances it was held that it was not improper that after setting aside the ex parte decree and giving an undertaking by Sailesh Chandra Banerjee referred to above, the accused were entitled to as re-corded tenants to catch fish in the tank. Hence they were ordered to be acquitted, The same principle was reiterated in a different form in the Kerala case referred to above.
8. In the case before me, several attempts were made either by the petitioners or their predecessor-in-title to deny that the opposite party is a bhag tenant in respect of the disputed land and to dislodge him therefrom. These attempts have failed. I find that the opposite party is a bhag tenant and is entitled to remain in possession of the land. No circumstance has been brought to my notice on the basis of which the petitioners might have entertained an honest belief that they have still a right to be in khas possession of the land. It has been found by the courts below that the opposite party raised the crops during the disputed year. It, therefore, appears to me that the present act of the petitioners is yet another attempt on their part to forcibly dislodge the opposite party from his possession of the disputed land.
9. In the result, I find no merit in this petition which is hereby dismissed.