Seshagiri Aiyar, J.
1. Counsel for petitioners and the counter-petitioner have argued this case with some warmth before me. I have come to the conclusion that no case has been made out against the 2nd and 3rd accused. They assisted the first accused in gathering the pepper and there is nothing to suggest that they did not believe that the first accused had a right to the pepper. The conviction and sentence as regards these two accused must be set aside and the fine must be refunded to them.
2. The case of the first accused stands on a different footing. A good portion of the judgment of the second Class Magistrate is taken up with the discussion of the title relating to the 70 cents in dispute. The Appellate Magistrate fortunately has not followed this procedure. A Magistrate will not find it easy to decide the title of the contending claimants when the question is incidentally raised in a theft case. Moreover the documents produced in this case are not easily reconcilable. The second Class Magistrate has also admitted a new document in evidence when he was about to write a judgment without giving the accused an opportunity of raising objections to its relevancy or admissibility.
3. Notwithstanding these irregularities, he has given his finding on the evidence regarding possession. The Appellate Court has confirmed that finding, although the Appellate Magistrate has committed a few errors in the statement of the case. That finding, it is clear to my mind, negatives bona fides on the part of the 1st accused in gathering the pepper. It has to be remembered that the 1st accused denied that he went upon the premises. This again shows that his claim to the pepper is not a bona fide one: The decision in Pandita v. Rahimulla Akundo 27 C.P 50 : 4 C.W.K. 480 shows that Courts will not conclude in favour of the bona fide assertion of a right when the accused knew that he had no possession of the property and gathered a produce grown by the complainant. I confirm the conviction of the 1st accused. Dr. Swaminadhan's argument that the assault was justifiable cannot be accepted, as the 1st accused had no right to be upon the paramba.
4. I think a fine of Rs. 100 will meet the ends of justice. I reduce the fine accordingly. The other Rs. 100 will be refunded to the 1st accused.