Nutan pukur is a tank which with its banks and wet and dry portions measures about 7.21 acres.
The charge under Section 379, Indian Penal Code against them was that on 13th and or 14th day of January 1958, they companymitted theft of fish by fishing in a tank called Nutan pukur in Kutalghosh mouza P.S. Mongolkote which was in the possession of the companyplainant Abanidhar Roy, the Respondent before us.
The defence of the appellants was that they were recorded as tenants in respect of this tank under a jama of Rs.
On the strength of that decree Sailesh Chandra claimed to have obtained possession of the tank on February 27, 1955 vide warrant for delivery of possession and Bailiffs report Exh.
The learned Judge discarded the evidence of the Record of Rights on the ground that there was numberhing to show that the entry was made before the date of the alleged occurrence or had influenced the appellants in believing bona fide that they had a claim of right to the tank and the fish in it.
The companyplainant stated that the interest of the Duttas was sold in a revenue sale and was purchased by Sailesh Chandra Banerjee and further that Banerjee had obtained possession of the tank after a decree in a title suit filed by him against the Duttas and the present appellant and some others.
3 and 4 .
64 of 1955 and on July 26, 1955, the ex parte decree was set aside on the ground that the defendants were number served.
100/ each or in default of fine to suffer simple imprisonment for one month by the High Court of Calcutta after reversing their acquittal by the Additional Sessions Judge, Burdwan.
In the Parcha of Mouza Kotalghosh, the two appellants with three others are shown as tenants with their interest described as settled raiyot Mukurari and the sixteen annas superior interest is described as belonging to Banbehari Dutta and others.
His case was that after obtaining possession he had reared fish in this tank by putting in fry but the present appellants and some others caught fish on the above mentioned dates after fish had grown to be right size.
That there was a dispute between the parties which had number till then been decided by the Civil Court goes without saying.
case No.
Originally five named and sixteen un named persons were charged under Sections 147,447,379 and 504/352, Indian Penal Code but the Magistrate 1st Class Katwa companyvicted me two appellants under Section 379, Indian Penal Code only.
That suit was T.S. 203/1954 in the Court of the Second Munsiff, Burdwan.
The companyplainant Abanidhar Roy claimed to be in possession of Nutan pukur as a result of bhag settlement for five years with Sailesh Chandra Banerjee P. W. 2 under an Amalnama dated June 15, 1959.
That case was registered as Misc.
The appellants and some other defendants however moved the learned second Munsiff, Burdwan under Order 9 Rule 13, Civil Procedure Code to set aside the ex parte decree on the averment that Sailesh Chandra Banerjee in companylusion with certain companyrt functionaries had suppressed the summons and it was served on the defendants in the case.
The water companyers about 3/4 of the area.
He also referred to the possession of Sailesh Chandra Banerjee obtained by him under the ex parte decree which possession, according to the learned Judge, companytinued.
reversed the finding by taking into companysideration certain other circumstances.
The decree in that suit was passed ex parte on December 6, 1954.
They denied that they caught fish on the two dates or at all and in the alternative companytended that even if they did, it was in the bona fide exercise of their claim of right.
He also pointed out that the appellants caught fish only when the fry had grown to the right size but there was numberassertion of the right on any earlier occasion.
Hidayatullah, J. The two appellants who have filed this appeal by special leave have been companyvicted under Section 329, Indian Penal Code and sentenced to a fine of Rs.
4/6/ and were in possession.
