A. Alagiriswami, J.
1. The appellant purchased two plots marked H and H-1 in S. No. 726 from one Johnson. This Johnson filed a suit O.S. No. 211 of 1958 on the file of the District Munsif of Kuzhiturai and in the final decree the plots H and H-1 as shown in the plan Exhibit A-3 attached to that decree were allotted to Johnson's share. The respondents herein Were defendants 2 to 5 in that suit. They were allotted a plot J in S. No. 726. The appellant preferred a complaint to the; Sub-Magistrate, Eraniel, alleging that the respondents had removed fruits from a tamarind tree standing in plot H-1. The learned Sub-Magistrate held that the offence against the respondents had been made out and found them guilty. But instead of sentencing them, he released them under Section 4 (1) of the Probation of Offenders Act on executing a bond for Rs. 100 to be of good behaviour for a period of six months. An appeal by the respondents to the learned District Magistrate of Kanyakumari succeeded and hence the complainant has filed this appeal.
2. The learned District Magistrate seems to have been of opinion that Exhibit P-3 which showed that possession of plots H and H-1 had been delivered to the appellant's vendor Johnson cannot be said to show that the complainant had possession because the complainant did not examine either the Amin Who effected the delivery to speak to the fact of his having effected delivery or Johnson to speak to the fact of taking possession. He referred to Ponnuswamy Madar v. Athi Nadar : (1958)2MLJ110 , where it is observed that the delivery warrant and Attakshi clearly recites that the plaintiff took possession of the property from the judgment-debtors and put the decree-holder in possession of the same, and that in regard to public records which are maintained with regularity in the ordinary course of routine they must be presumed to show official acts regularly and correctly performed until the contrary is proved. He also referred to Damodaram Namboothiri v. Ulahannctn (1961) K.L.T. 799, where in addition to the record of delivery of possession there was an admission by the accused which showed that the complainant had come into possession. In holding that in this case the plaintiff cannot be said to be in possession obviously because there is no admission in this case as in the case of Damodaran Namboothiri v. Ulahannan (1961) K.L.T. 799, the learned District Magistrate has clearly ignored the effect of Ponnuswamy Nadar v. Athi Nadar : (1958)2MLJ110 . The respondents did not examine any Witnesses to show that not with standing the delivery of possession of plots H and H-1 to Johnson they were still in possession of the properties. Until the contrary is proved, it must be held that Johnson took possession of plots H and H-1 and that possession passed to the Complainant, that is, the appellant in this case. The learned District magistrate has referred to certain other matters which are quite irrelevant-payment of Kist before the date of delivery in August, 1961 and the fact that the second appeal was pending in the high Court. If in fact Johnson had actually took possession pending the second appeal, the respondents should be deemed to be guilty of theft as they would be guilty of removing certain movable properties from possession of the plaintiff. The fact that they Were still litigating about their rights in the High Court would not show that either they had right to possession or that there was no criminal' intent on their part. If possession had not been delivered through Court then of course it would be a different matter. However nothing more need be said about this aspect of the matter because on the facts also the learned District Magistrate has come to the conclusion that there was no sufficient evidence to show that the respondents plucked the tamarind fruits. This one finding is enough to throw out the complaint of the appellant and it was quite unnecessary for the learned District Magistrate to have gone on to hold in the face of the delivery receipt either that the plaintiff was not in possession or that the pendency of the second appeal would. in any way have any bearing on the question of the appellant's possession. With these observations the criminal appeal is dismissed.