1969 P Cr (PLP)

Nemo for the State. These 22 accused were convicted under sections 379 and 147 of the Pakistan Penal Code. On appeal the conviction under section 147 was set aside. The prosecution case briefly is that the complainant Magreb Ali Molla was bargadar under Surendra Nath Dutta and others. The disputed land is Plot No. 1609 containing about 9 bighas. It is stated that P. W. 2 Abul Hayat by a power‑of‑attorney executed by the Duttas got the disputed land by a deed of exchange dated 23‑9‑

64. Magreb Molla con tinued in possession of the disputed Plot No. 1609. On 18‑3‑65 in the early hours of the morning the 22 accused persons cut away the Sarisha crop which had been grown on the said plot by Magreb. Hence this case.

2. The defence of the accused persons is that accused Kuran is a bargadar with respect to the suit land under the Kundus. The interest of Surendra Nath Dutta in the suit land along with his other lands were auction‑purchased by the landlord as far back as 1943. The landlord settled the land with the Kundus. In a certificate sale against the Kundus, the land was purchased by some female members of the Kundus on 16‑3‑

62. The further case of the accused is that the land in question was fallow for some years and then Kuran was the bargadar under the Kundus. They have cut and taken away the Sharisha which was grown by them.

3. The prosecution examined 10 witnesses and the defence examined 2 witnesses. On an analysis of evidence the learned Magistrate convicted all the 22 persons as stated above under both the sections. On appeal the learned Appellate Court acquitted the accused of the charge under section 147 of the Pakistan Penal Code. Hence this Rule.

4. At the outset it is clear that the dispute is with regard to possession of the land in question. Both the Courts below have failed to look at the case from that point of view. Exh. E is the Sale Certificate granted to the landlords in Certificate Case No. 491 of 1942‑

43. It clearly shows that the certificate‑debtors are the Duttas and all their interests were purchased by the auction purchasers, landlords. In Lot No. 2 the Plot No. 1609 is clearly shown. Therefore it is clear that the Duttas lost that interest in the suit land as far back as 1943. On behalf of the prosecution it has been argued that even after the purchase by the landlords no possession was taken in this particular plot and that the daughter of Surendra Nath, namely, Moti Rani Dutta continued to possess this land and some Dakhilas have been produced to that effect and that position is also shown in the S. A. Khatian Exh.

3. But the prosecution had failed to show the link between the loss of interest by Surendra Nath Dutta and others and the gaining of the interest of Moti Rani Dutta. Exh. F is Sale Certificate in the Certificate Case No. 23450 of 1958/8106/57‑58.The East Pakistan Government is certificate‑holder and the Kundus are shown as the certificate‑debtors. In that certificate the Plot No. 1609 is clearly shown and it has been sold along with other plots and the certificate purchasers are Himangshubala Kundu, Nalini Bala Kundu and others. How Motirani could come in in spite of this sale I cannot really understand. Exh. H is the writ of delivery of possession pursuant to the certificate sale represent ed by Exh. F and it clearly shows that delivery to possession was given to the auction‑purchasers. So far as the title is concerned the defendants have shown clearly that the title was with them.

5. But in a case of this nature the question of actual physical possession is one of the main criterions. So far as the prosecution is concerned they have examined a number of witnesses who claimed to hold neighbouring lands. The defence also have examined 2 witnesses, namely, D. W. 1 Joynal Pramanik who claimed to hold contiguous land and he has categorically stated that Kuran petitioner No. 2 possessed the land and had raised the relevant crops. But the appellate Court has rejected his evidence without discussing it altogether. The trial Court has rejected his evidence as he has held that this witness is a sycophant of Gopi Nath Kundu D. W.

2. The basis of this is that the witness has said that Gopi Nath Kundu has a Mahajani business and he sells his pulses. I do not understand how such a conclusion can be drawn from such evidence. Both the Courts below have also interpreted the evidence of D. W. 2 and (ejected it on the ground that he has said that he does not know whether the suit plot was in the sale certificate. But the evidence is quite otherwise. He has stated "It is not a fact that this particular Dag 1609 was not in that proclamation." But from this evidence the Courts below have concluded that the witness was stated that he does not know whether the plot was included in the sale certificate, and in this background the Courts below have rejected the story of possession of the defence.

6. In any event it is clear that there is a bona fide claim of right in the disputed land which is supported by cogent evidence .end in this view of the matter, I am of opinion, that there was no criminal intention in the mind of the accused petitioners. In the circumstances I respectfully follow a decision of the Calcutta High Court in the case of Afran Ali (I L R 44 Cal. 66) where their Lordships have held that where property is removed in the assertion of a contested claim of right, however, unjustified that claim may be the removal thereof does not constitute theft. In the facts of this case I have no doubt in my mind that the dispute was bona fide and as such I hold that no offence under section 379 of the Pakistan Penal Code has been committed by the accused persons and they are entitled to an acquittal. The Rule is, therefore, made absolute. The conviction and sentence passed against the accused persons are set aside and they are discharged from their bail bonds and the fine, if any, paid, be returned to the accused. Rule made absolute.