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Nityananda Poddar and anr. Vs. Rupai Bepari - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1936Cal261
AppellantNityananda Poddar and anr.
RespondentRupai Bepari
Excerpt:
- .....that the complainant and his other co-sharers including sonajuddi were in possession of the land and huts. but about three days before the occurrence the huts were blown away, and the two petitioners utilized some of the old materials of those huts and built a hut on the same land.2. the two petitioners, in execution of a decree obtained against sonajuddi, purchased four anna share in the land and the structures and they had taken possession through court. as against sonajuddi this possession is effective in the eye of the law and it amounts to actual possession. the question is whether under these circumstances these persons can be convicted under the above-mentioned sections. if sonajuddi had utilized the materials and had built a hut on the same joint land he could not have.....
Judgment:

R.C. Mitter, J.

1. The petitioners before me have been convicted under Section 379, I. P. C., and sentenced to pay a fine of Rs. 30 each, in default to suffer rigorous imprisonment for four weeks. They have also been convicted under Section 447, I. P. C., and each of them sentenced to pay a fine of Rs. 15, in default to suffer rigorous imprisonment for two weeks. It is against both these convictions that the two petitioners have moved this Court. In my judgment, on the findings arrived at by the Courts below, these convictions are not sustainable in law. The position is this: that the complainant Rupai, his brothers Serajuddi and Sonajuddi, and other were the owners of a plot of land situate in Anguria Bazar, and they were also joint owners of some huts which were on that land. The complainant's case is that this piece of land and the huts standing thereon were inherited from their father Osimaddi, not only by the complainant but also by Sonajuddi. For the purpose of this case, it is not necessary to mention the names of other co-sharers. The complainant's further case is, and that is also the finding, that the complainant and his other co-sharers including Sonajuddi were in possession of the land and huts. But about three days before the occurrence the huts were blown away, and the two petitioners utilized some of the old materials of those huts and built a hut on the same land.

2. The two petitioners, in execution of a decree obtained against Sonajuddi, purchased four anna share in the land and the structures and they had taken possession through Court. As against Sonajuddi this possession is effective in the eye of the law and it amounts to actual possession. The question is whether under these circumstances these persons can be convicted under the above-mentioned sections. If Sonajuddi had utilized the materials and had built a hut on the same joint land he could not have been con victed under Section 379. This is my firm opinion because there would be no dishonesty on his part. 'Dishonesty' has been defined in the Penal Code to mean 'wrong ful loss' or 'wrongful gain.' A co-sharer in possession of a joint property has the undoubted right to remove a moveable property in his possession and also in the possession of other co-sharers from one spot of the joint land to another spot of the same land. There would be no wrongful loss to the other co-sharers in such a case. Having regard to the fact that the possession of the two accused was effective against Sonajuddi, I do not see how they can be convicted of any offence in such a case. One of the elements of theft, namely dishonesty, is absolutely absent In this case. I do not see also how they can be convicted under Section 447. They are part owners of the land, they have obtained effective possession of Sonajuddi's share and they had entered upon the land for the purpose of exercising the rights of ownership. If the other cosharer comes to resist them, and in spite of the protest they remain upon the land, I do not see how it can be said that they sentered the land to intimidate, insult or annoy the other co-sharers. They wanted to go in peacefully, and it was only the obstruction of the complainant which led them to enter in spite of the protest. For these reasons I set aside the conviction and sentence under both the sections foresaid and acquit both the petitioners. The fines, if paid, must be refunded.


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