JUDGMENT : Batman, J. - This revision is directed against an order of the Additional Sessions Judge, Mayurbhanj, affirming the order of the Magistrate 3rd class, Balasore, convicting the accused-Petitioners u/s 379 Indian Penal Code and sentencing them to simple imprisonment for fifteen days and a fine of Rs. 20/- each in default to undergo simple imprisonment for one week each, in Case No. C. 282/56/T. 40/57. 2. The material facts are shortly these: Prior to 1943 one Jaikrishna Pal was the original proprietor in respect of a plot of land being plot No. 427 with an area of 0.87 decimals in Mouza Bada Madhusudanpur. He leased out the said land to his son-in-law Gangadhar Mahapatra by a lease deed. The complainant Arjun Sial claims to be a Bhag-tenant in respect of the said plot of land under Gangadhar Mahapatra. 3. Sometime in 1943, at a revenue sale, one Tafel Ahamed purchased the aforesaid land. Then Gangadhar Mahapatra sent Rs. 3/- as rental in respect of the said plot of land, by money -order to Tafel Ahamed who received the said sum on October 1, 1943 (ext 2). On October 4, 1943 the said sum of Rs. 3/- was however returned by Tafel Ahmed to Gangadhar Mahapatra by a money-order (ext. C). The implication was that Tafel Ahamed did not accept Gangadhar as a Tenant in respect of the said land. On the said day (October 4, 1943) a notice was served by Tafel Ahamed on Gangadhar repudiating that the latter was a tenant. The matter so far as Gangadhar Mohapatra is concerned appears to have rested there until the incident in question which resulted in the present proceedings. 4. On January 9, 1943 the said plot of land by a registered deed of gift (ext. A) was given by Tafel Ahmed to his wife. In 1952, the Orissa Estates Abolition Act (Act I of 1952) came into force by virtue of which Tafel Ahamed's wife became a tenant in respect the said plot of land under the Anchal Adhikari. On July 20, 1954 and May 10, 1955 Tafel Ahamed's wife paid rent to the Anchal Adhikari (exts. B and B-1). 5. This was the position until the date of the incident in question (November 9, 1956), which is the subject-matter of the present proceedings. On July 20, 1954 and May 10, 1955 Tafel Ahamed's wife paid rent to the Anchal Adhikari (exts. B and B-1). 5. This was the position until the date of the incident in question (November 9, 1956), which is the subject-matter of the present proceedings. It appears that on November 9, 1956 the accused-Petitioners claiming as Bhag-tenants of Tafel Ahmed's wife cut and removed paddy from the said land. The complainant Arjun Sial objected to this cutting and removal of the paddy by the accused-Petitioners and lodged a complaint against them u/s 376 Indian Penal Code. 6. The only question for consideration is whether the accused Petitioners had any right to cut and remove the paddy as Bhag-tenants under the present proprietor of the laud. Mr. B.K. Pal, learned Counsel appearing for the accused-Petitioners, argued that the accused Petitioners having been Bhag-tenants in respect of the said land had a right to the paddy. He further argued that in any event the accused Petitioners cut and removed the paddy in bonafide assertion of their right as the Bhag-tenants. In support of his contention Mr. Pal cited before me a decision of the Calcutta High Court being a judgment of late Sir Asutosh Mukerji in Surji Ali v. Arphan Ali AIR 1917 Cal. 648. There, it was held that where property is removed in the assertion of a bonafide claim of right, the removal does not constitute theft. But the claim of right must be an honest one, though it may be unfounded in law or in fact. If the claim is not made in good faith, hut it is a mere colourable pretence to obtain or keep possession, it avails not as a defence. Whether the claim is honest must be decided by the Court from all the circumstances of the case and it should not convict unless it is in a position to say that the claim is a mere pretence. This decision has also been subsequently followed by the Patna High Court in Sadasiv Singh and Others Vs. Emperor where it was held that if a claim of title to property is honestly made and it is not merely colourable, the jurisdiction of the Criminal Courts is ousted; and a man who honestly believes that he is taking away property from his own land cannot and ought not to be convicted of theft. Emperor where it was held that if a claim of title to property is honestly made and it is not merely colourable, the jurisdiction of the Criminal Courts is ousted; and a man who honestly believes that he is taking away property from his own land cannot and ought not to be convicted of theft. In a subsequent decision of the Patna High Court the same principles were reiterated as will appear from a decision in Abdul and Another Vs. Emperor, wherein the principles long before clearly laid down in the Calcutta decision just cited above have been followed. Since then there have been many decisions of various High Courts following these principles as to which there is no dispute today. 7. Apart from the decision in law, even on the facts of this case there is sufficient material on which I am satisfied that the accused Petitioners in cutting and removing the paddy from the land in question did so in bona fide assertion of their right as tenants of the present proprietor. In fact, the prosecution evidence could not satisfactorily prove the complainant's possession. Some of the witnesses for the prosecution themselves admitted the accused-Petitioners' right in respect of the said land. Tafel Ahmed himself deposed for the defence and he admitted that the accused-Petitioners were his tenants. Gangadhar Mohapatra also gave evidence. He was the main hero in the litigation. After the prosecution witnesses had deposed and the evidence of the defence witnesses were over he found himself in this predicament as Tafel Ahamed himself admitted the accused-Petitioners as tenants. Presumably to get over this difficulty he offered himself as a Court witness being Court witness No. 1 and claimed that the accused-Petitioners were inducted into the land as his own Bhagchasis. This attempt on the part of Gangadhar has made the position still worse. On the admission of Gangadhar himself, the accused-Petitioners became Bhagchasis and thus acquired a right in respect of the land in question and as such they had a right to cut the paddy and remove it. 8. Therefore, both in law and on facts I do not think that the conviction and sentence of the accused-Petitioners can be maintained. The result, therefore, is that this revision is allowed, the order of conviction and sentence is set aside and the accused-Petitioners are acquitted. Revision allowed. Final Result : Allowed