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Udai NaraIn GaIn Vs. Ramanath Midda - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.732
AppellantUdai NaraIn Gain
RespondentRamanath Midda
Excerpt:
criminal procedure code (act v of 1898), section 439 - acquittal, setting aside of--revision--mistake of law as to accused's right to property--penal code (act xlv of 1860), section 379--theft--bona fide claim of right--execution--land delivered to decree-holder in execution of decree--crops growing, whether pass. - .....against the accused for declaration of his title to and recovery of possession of the said land the complainant was successful. in execution of that decree the complainant obtained possession from the court. thereafter the accused, opposite party removed from the land, the possession of which had been given to the complainant, the crop that the accused had grown thereon. the charges brought against the accused were charges of rioting and charges of theft. the charge of rioting has not been considered by the magistrate, and in so far as the charge of theft is concerned the learned magistrate has acquitted the accused on the ground that he had grown the crop prior to the delivery of possession. in this clearly he has fallen into a mistake of law. when in execution of a decree in a.....
Judgment:

1. This case arises out of-a dispute regarding apparently 9 bighas of land. The Magistrate appears to have found that as a matter of fact in a suit brought by the complainant against the accused for declaration of his title to and recovery of possession of the said land the complainant was successful. In execution of that decree the complainant obtained possession from the Court. Thereafter the accused, opposite party removed from the land, the possession of which had been given to the complainant, the crop that the accused had grown thereon. The charges brought against the accused were charges of rioting and charges of theft. The charge of rioting has not been considered by the Magistrate, and in so far as the charge of theft is concerned the learned Magistrate has acquitted the accused on the ground that he had grown the crop prior to the delivery of possession. In this clearly he has fallen into a mistake of law. When in execution of a decree in a title suit possession of land is given, the growing crop passes with the land.

2. In that view of the matter it is quite clear that this case has not been properly tried, and we, therefore, set aside the order complained of and direct that the complainant's complaint be further enquired into and the case against the accused-opposite party re-tried. On the re-trial, of course, care will have to be taken not to convict the accused of theft, should it be found that though he may have made a mistake as to his rights under the law he was yet acting in the exercise of a bona fide claim of right.


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