JUDGMENT : Misra, J. - Petitioners have been convicted u/s 379, Indian Penal Code and sentenced to simple imprisonment for one month each and to pay a fine of Rs. 50 each, in default to undergo, imple imprisonment for one month more. Petitioner No. 1 is the father of Petitioner No. 2. The rest of the Petitioners do not claim interest in the disputed lands. From the chart, supplied by Mr. G. Das, it would be apparent that there was a long standing dispute between the parties. The history of the litigation may be briefly stated: Magata Panigrahi, father of P.W. 1 brought Money Suit No. 500 41 in the Court of the Munsif, Aska, for recovery of Rs. 910 against Petitioner No. 1. The suit was dismissed on 17-8-1942. In Money appeal No. 178 41 the suit was decreed on 9-3-1943. On 19-7-1943 Second appeal No. 100 of 1943 was filed in the High Court, against the appellate decree. Some of the properties of the Petitioners 1 and 2 were purchased by the decree-holder (opposite party) for Rs. 16001 on 29-10-1945 in Execution Case No. 94 of 1945 in the Court of the Munsif, Askaann possession was delivered to the decree-holder pn 17-5-1.946. On 11-11.1946 Second Appeal No. 100 of 1943 was allowed and the suit was remanded. Petitioner No. 1 filed an application for restitution on 15.2-1947 in M.J.C. No. 34 of 1947 in the Court of the Munsif, Aska. On 29-11-1947 the suit was dismissed by the Munsif, Aska, after remand. On 29-11-1948 the suit was decreed by the Additional Subordinate Judge, Berhampur in the Miscellaneous Appeal No. 19 of 147 and the decree in favour of the Plaintiff was confirmed in Second Appeal No. 112 of 1949 on 27-8-1954. On 12.7-1956 in M.J.C. No. 34 of 1947 restitution was ordered by the Munsif, Aska. On 25-2-1958 the application for restitution was dismissed by the Additional Subordinate Judge, Berhampur in Miscellaneous Appeal No. 3 of 1957. On 3-10-1958 P.V.B. Rao, J. directly restitution in Miscellaneous Second Appeal No. 24 of 1958 and possession was delivered to Petitioner No. in 1959. In A.H.O. No. 1 of 1959, the judgment of P.V.B. Rao, J. was set aside by a Division Bench of this Court consisting of S.P. Mohapatra, and J.K. Misra, JJ. On 3.1.1961 the application for restitution was dismissed. In A.H.O. No. 1 of 1959, the judgment of P.V.B. Rao, J. was set aside by a Division Bench of this Court consisting of S.P. Mohapatra, and J.K. Misra, JJ. On 3.1.1961 the application for restitution was dismissed. On 21-1-1961 and application for leave to appeal to Supreme Court was filed in S.C. A. No. 48 of 1961. In M.J.C. No. 101 of 1961 the Munsif of Aska redelivered possession to the decree-holder on 4.8-1961. S.C.A. No. 48 of 1961 was dismissed on 26-9-1961 and leave to Supreme Court was refused. On 27-11-1961 an application for leave under Article 16 of the Constitution for special leave was filed before the Supreme Court. The Petitioners cut and removed the crop from the disputed lands on 10-12-1961 and 11-12-1961. On 22-1-1962 special leave was granted by the Supreme Court. The civil litigation between the parties is still pending in the Supreme Court in Civil Appeal No. 29 of 1962. Though notice of the criminal revision was served on the opposite party as well as on the State there has been no appearance on their behalf. Mr. G. Rath, the learned Government Advocate, assisted the Court on being called upon. 2. The prosecution case is that by 4-8-1 61 when P.W. 1 got delivery of possession of the disputed lands through Court, there was crop on about one acre of land. After 4-8-1161 P.W. 1 transplanted paddy on the disputed lands and did all other agricultural operations till the dates of occurrence when crops were forcibly remove by the Petitioner's. Petitioner No. 1 in his defence claimed that he continued in possession of the disputed lands by doing further agricultural operations despite delivery of possession on 4-8-1961 and he cut and removed the crop which he had grown. Petitioner No. 2 said that he had not come to the spot on the fates of occurrence and was working in Post Office where he was an employee. The rest of the Petitioners denied their having come to the spot and cut the paddy. 3. Both the Courts below have concurrently found on thorough examination of the prosecution evidence that from the date of delivery of possession on 4-8-1961 the agricultural operations were done by P.W. 1. The Civil Court peon (p.w. G). who gave delivery of possession, had stated in his report (Ext. 3. Both the Courts below have concurrently found on thorough examination of the prosecution evidence that from the date of delivery of possession on 4-8-1961 the agricultural operations were done by P.W. 1. The Civil Court peon (p.w. G). who gave delivery of possession, had stated in his report (Ext. G-I) that at the time of delivery of possession there was crop on about one acre of land. In his deposition in Court he stated that there was crop on the land. Obviously the statement in Court relates to the existence of crop only on about one acre of land and not on the residual lands, the total of the disputed lands -being 5 acres and odd. P.ws. 1 to 5 deposed that P.W. 1 transplanted paddy and performed all other agricultural operations and that Petitioners I and 2 had not gone upon the land subsequent to delivery of possession excepting at the time of removal of crop on the dates of occurrence. Mr. Das conceded before me that there is no evidence for the defence to show that Petitioners 1 and 2 continued in possession and did any agricultural operations in the disputed lands subsequent to 4-8-1961. The learned Sessions Judge's finding that Petitioner No. 1 had grown paddy only on about one acre of land before delivery of possession and that P.W. 1 did the entire agricultural operations including transplantation in an-the lands in unassailable. 4. Mr. Das next contended that even on the finding recorded by the Courts below, the petition's are entitled to an acquittal as the crops were removed under bona, fide claim of right and the removal would not amount to an offence u/s 319, Indian Penal Code even though the claim might be ill founded in law and in fact. In support of his contention he placed reliance on a large many authorities including AIR 1962 S.C. 587 and 1964 (1) S.C.J. 419 . 5. Section 378, Indian Penal Code defines 'theft' as whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. 5. Section 378, Indian Penal Code defines 'theft' as whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Under Explanation 1 a thing so long as it is attached to the earth, not being movable property is not the subject of theft but it becomes capable of being the subject of theft as soon as it is served from the earth. Explanation 2 lays down that a moving effected by the same act which effects the severance may be a theft. There is no dispute in this case that the Petitioners removed the crop out of the possession of the complainant without his consent. The only point for consideration is whether the Petitioners intended to take the crop dishonestly. Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing 'dishonestly' Section 24, Indian Penal Code). The Petitioners had the intention of causing gain to themselves and loss to the complainant as the disputed lands were in the possession of the complainant and he had grown the crop. The question is whether the gain or loss were wrongful. Wrongful gain is gain by unlawful means of property to which the person gaining is not legally entitled. A person is said to gain wrongfully when such person retains or acquires wrongfully (Section 23, Indian Penal Code). 6. In Chandikumar v. Abanidhar AIR 1964 (1) 8. C.J. 419: (1964) 4 S.C.D. 287 their Lordships laid down the following proposition in light of which the contention must be answered. A claim of right in good faith, if reasonable, saves, the act of taking from being theft and where such a plea is raised by the accused, it is mainly a question of fact whether such belief exists or not. This Court in Suwari v. Boddepalli AIR 1962 S.C. 587 observed as follows: It is settled law that where a bonafide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft unless there would be not only no legal right but no appearance of colour of a legal right. An act does not amount to theft unless there would be not only no legal right but no appearance of colour of a legal right. By the expression colour of a legal right is meant not a false pretence but a fair pretence, not a complete absence of claim but a bonafide claim, however weak. 7. The same principle was very clearly analysed in Abdul and Another Vs. Emperor, by Fazl Ali, J. It was held in that case that if the accused removed the property honestly believing it to be his, he could not be convicted of theft, even though his claim might be ill -founded in law and in fact. The claim put forward by the accused must not be a mere colourable pretence. In each case, the Court shall have to come to a finding as to whether the claim advanced by the accused is an honest one or a mere pretence. It may, however, be laid down as a general I proposition that in cases where the alleged theft consisted in the removal of crop grown on the land, the most vital question to be investigated is as to which of the parties had grown the crop. A decision on this point would enable the Court to come to a definite conclusion in majority of cases as to whether the claim of the accused was bonafide or a mere pretence. The aforesaid dictum cannot however, be treated as laying down a universal rule. There are exceptions which cannot also be enumerated in an exhaustive manner. Some of such exceptions are referred to at page 88. 8. Applying the aforesaid tests, the question is whether the facts and circumstances of this case, the Petitioners had any appearance or colour of a legal right, or whether the claim is a false pretence. In this case the facts are telling: On 4-8-1961 the lands were delivered. Petitioner No. 1 had grown crop only on about one acre of land and there was no crop on the rest of the lands by the date of delivery. The complainant grew crop in the residual four acre and odd and performed transplantation and all other agricultural operations on the entire disputed lands. Petitioners 1 and 2 clearly knew that the crops belonged to the complainant. The complainant grew crop in the residual four acre and odd and performed transplantation and all other agricultural operations on the entire disputed lands. Petitioners 1 and 2 clearly knew that the crops belonged to the complainant. By the dates of occurrence Petitioners 1 and 2 merely filed an application for special leave in the Supreme Court. They raised the false defence that they were in possession of the land and performed agricultural operations. In the facts and circumstances of this case, there cannot be any conclusion that on the dates of occurrence Petitioners 1 and 2 entertained the belief that they were entitled to the crop. The claim is not at all the bonafide and comes within the rule laid down that it is a false pretence and not a bonafide claim, however weak. 9. All the decisions cited by Mr. Das are clearly distinguishable on facts. He, however, contended that Petitioners 3 to 8 are mere labourers and are entitled to acquittal. No such hard and fast rule can be laid down that a servant or labourer cannot be held guilty of the offence of theft when he removes the crop at his master's bidding. He would not be liable for the offence if it is shown that he did not participate in the master's knowledge of dishonest nature of the act. Such a case would be one of the exceptions to the general rule Abdul and Another Vs. Emperor, In this case it is not the plea of Petitioners 3 to 8 that they went upon the land as labourers at the request of Petitioner No. 1 and that they had no knowledge of the intention of Petitioner No. 1 for dishonest removal of the crops. On the contrary, they took to a false plea of their being not present on the spot during the occurrence. They are, therefore, not entitled to acquittal. No sentence of imprisonment need, however be imposed on them. The sentence of fine already imposed on them must, however, stand. So far as Petitioners 1 and 2 are concerned, no case is made out for interference with their sentence. 10. In the result, the revision is dismissed subject to the modification in the sentence passed on Petitioners 3 to 8. Revision dismissed sentence modified. Final Result : Dismissed