1. The petitioner before us has been convicted of the offense punishable under Section 426, Indian Penal Code, and sentenced to pay a fine of 30 rupees, or in default to undergo rigorous imprisonment for one month.
2. The offence of which he has been convicted has reference to a crop of son grass growing on a certain piece of land. It is not disputed that this parcel of land belonged originally to one Mukhada, who is now dead. The complainant Akhay Sardar claims this land on the strength of a settlement taken by him from one Suren Chowdhuly, who again rests his title upon an unregistered kabuliyat said to have been executed by Mukhada before her death. On the other hand the accused claims the land on the strength of a purchase from one Arun Tarafdar,who appears to be a nephew and heir of Mukhada. The Trial Magistrate largely relied upon the possession by Akhay or at least the non possession by Arun of the documents of title. But in doing this it appears to us that he has overlooked the evidence which goes to show that Akhay was also related to Mukhada and at one time lived in her house. There is no finding by the Magistrate as to which of the contending parties grew the son, and under all the circumstances we think that this is a case in which it is unsafe to uphold the conviction and it would have been proper for the Trying Magistrate to hold that the accused person was acting in the exercise of a bona fide claim of right.
3. We, therefore, set aside the conviction of, and the sentence imposed on, the petitioner and direct that the fine and the sum ordered to be paid by way of of costs, if paid, be now refunded.