JUDGMENT : Das, J. - This is a complainant's appeal against the order of the Judicial Magistrate, Kendrapara, acquitting the Respondents of a charge for an offence u/s 379, Indian Penal Code. 2. One Parakhit Rout had two sons, Hrushi and Jagadish. Achut, Sibant and Biswanath are the three sons of Hrushi. Gopi and Somanath are the two sons of Jagadish. Mayadhar is the son of Achut. Benu (p. w. 4) is the son of Sibant and Darpanarayan is the son of Biswanath. Gopi had two sons Bimbadhar (accused No. 2) and Digambar. Digambar had four sons, viz., Bhima, Rama, Laxman and Arjun who are accused Nos. 1, 3, 4 and 5 respectively in this case. 3. It is the case of the complainant that she cultivated the suit-land comprising an area of 1.96 acres in plot No. 100 appertaining to Khata No. 59 in village Belpal, on the basis of a Bhag-patta (ext. 1) granted in her favour by Mayadhar, Benudhar and Darpanarayan in the year 1961. In the year in question, this is, 1963, she also took 2/3rds of this property on Bhag from two of the co-sharers, viz., Mayadhar and Benudhar by a patta, Ext. 2 and the 1/3rd interest of Darpanarayan from one Bhimsen Behera in whose favour Darpanarayan bad executed an usufructuary mortgage on 23-6-1962 by Ext. 4 She raised paddy on the said land harvested the same, and kept it on her ridge, but the accused persons on 3-10-1963 forcibly removed the cut-paddy and thus committed an offence u/s 379, Indian Penal Code. She filed a complaint in the court of the Sub-divisional Magistrate, Kendrapara, and the accused persons were duly summoned to stand a trial. 4. In support of the prosecution story, some witnesses were examined including Benudhar (p.w. 4) and some documents such as the Bhag patta, Bhag-receipts and the Khatians were also filed. 5. The plea of the accused is that they are the co-sharers of the disputed land along with Mayadhar, Darpanarayan and P.W. 4 Benudhar. Some disputes were going on between them regarding their paternal property of which the suit-property forms a part and they have let out the suit-land along with Darpanarayan to Digambar Sethi, d.w. 2, who raised the crop in the year in question. They contend that P.W. 1 (complainant) was not a Bhag-Chassi in respect of the suit-land, nor did she raise the crop. They contend that P.W. 1 (complainant) was not a Bhag-Chassi in respect of the suit-land, nor did she raise the crop. She is working as a maidservant under P.W. 4 at whose instance she has filed this false case. On behalf of the defence some witnesses were examined. Accused Benudhar also examined himself as d.w. 4. They filed a petition, Ext. A, to show their long standing enmity with Mayadhar, Benudhar and others, and also examined d.w. 2 to prove that he cultivated the disputed land in the year of occurrence as a Bhag-chassi. 6. On a perusal of the evidence, the learned Magistrate found that the evidence of possession of both sides was equally balanced and that the possibility that d.w. 2 might have raised the disputed crop cannot be ruled out. In view of that finding he did not consider it necessary to discuss further the evidence as to the removal of the crop by the accused persons from the land in question. He further held that assuming that they removed the crop, it was in exercise of a bonafide claim of right and that does not amount to theft within the meaning of Section 379, Indian Penal Code. It is against this order of acquittal the present appeal has been filed. 7. The relationship of the parties as stated above is admitted. P.W. 4 comes from the branch of Hrushi and the other accused persons including accused No. 2 who has examined himself as d.w. 4, come from the branch of Jagadish. Thus, the dispute is mainly confined to these two branches. 8. It is the case of P.W. 4 that there was a prior partition some 25 years ago and the disputed property fell to their share. It is the case of the accused persons that though they have been separated for a long time, some of the properties including the disputed property still remain a part of the joint family property and they settled the land on Bhag basis with d.w. 2. In the back round of these contentions, the present case has to be examined. 9. That some of the properties still stand recorded jointly is clear from the Khatian Ext. 6/1. Though, no doubt from Ext. 6 it appears that the disputed plot stands recorded in the name of Biswanath, Sribant and Mayadhar, son of Achut representing the branch of Hrushi. 9. That some of the properties still stand recorded jointly is clear from the Khatian Ext. 6/1. Though, no doubt from Ext. 6 it appears that the disputed plot stands recorded in the name of Biswanath, Sribant and Mayadhar, son of Achut representing the branch of Hrushi. It is on the basis of this Khatian, it was contended by the prosecution, particularly by P.W. 4 that the disputed property was in exclusive possession of the branch of Hrushi and the accused persons representing the branch of Jagadish had no interest therein. It has been asserted by Benudhar that even before the settlement they were separate in all respects and accordingly separate entries have been made in the record of rights. But as is well-settled mere definition of shares in the revenue papers is not sufficient to prove separation. Further, the mere separation also is no evidence of partition of the properties by metes and bound. It is, however, the case of P.W. 4 that there was a partition deed relating to their family partition of the year 1924-25. But no such deed has been filed. Apart from that there is a fatal admission by P.W. 4 himself who has admitted in cross-examination that except the suit-land all other lands had been partitioned. Neither Mayadhar nor Darpanarayan the other co-sharers have been examined in this case. It appears from Ext. 4 that on 11-4-1962, Darpanarayan in respect of his 1/3rd interest in the disputed land had executed a usufructuary mortgage in favour of one Bhimsen Behera. In fact, it is the case of the complainant that on 28-4-1961 Mayadhar, Benudhar and Darpanarayan had jointly executed a Bhag patta (ext. 1) in her favour and she raised paddy in that year. Later on, she took from Bhimsen, the mortgagee in Ext. 4, the interest of Darpanarayan to cultivate the said land on Bhag. This, according to her, was by oral arrangement. Neither Darpanarayan nor Bhimsen has been examined at least with respect to the 1/3rd interest of Darpanarayan. To establish the case of prior partition, reliance was placed by the prosecution on a usufructuary mortgage-deed Ext. 7 said to have been executed on 21-7.1928 by Mayadhar in favour of Gopinath, father of accused Bimbadhar. No doubt, that is an important piece of evidence in support of the contention regarding prior partition. To establish the case of prior partition, reliance was placed by the prosecution on a usufructuary mortgage-deed Ext. 7 said to have been executed on 21-7.1928 by Mayadhar in favour of Gopinath, father of accused Bimbadhar. No doubt, that is an important piece of evidence in support of the contention regarding prior partition. But that by itself is not conclusive as there is nothing in that document to show that any portion of the joint family property was the subject-matter of the mortgage. With respect to the actual period of possession of the the suit land by P.W. 1, the evidence of the prosecution also appears to be discrepant. It is the evidence of P.W. 1 that she was in possession of this land on Bhag basis since about five years, though her document, Ext. I, shows that she was there only since two years prior to the date of occurrence. The evidence of P.W. 4 however, shows that the land was given to P.W. I since two years that is since 1963 and before that P.W. 4 himself was cultivating the land with the help of labourers. That there was some dispute between the parties regarding the possession is admitted. It seems that there was a 145 proceeding in respect of the suit-land. It also appears that there was some dispute as in some of the settlement papers there is no mention of the names of the accuse persons. The other witnesses, p.ws. 2 and 3 examined on behalf of the prosecution are silent about the period of possession by P.W. 1. While giving the boundary of the land, the witnesses also made some confusion. On behalf of the defence some witnesses were examined to show that the land was let out to Digambar Sethi. This was the evidence of Digambar as well as the accused Bimbadhar Rout. It is the case of Bimbadhar that whatever might be the nature of the record of rights, they possessed all the lands jointly and only recently both the parties sold the Kosila land. In view of this state of evidence, the learned trial Court held that the prosecution has failed to make out a case beyond all reasonable doubt and in any case the accused persons have succeeded in making out a case of bonafide claim of right. 10. In view of this state of evidence, the learned trial Court held that the prosecution has failed to make out a case beyond all reasonable doubt and in any case the accused persons have succeeded in making out a case of bonafide claim of right. 10. It is well-settled that to sustain a conviction u/s 379, it is necessary to prove the dishonest intention to take out property out of the possession of another, and removal based upon the assertion of a, bona fide claim of right does not constitute theft. The claim of right, however, must be honest one though it may be unfounded in law or may not stand the test of a civil court. Of course, if the claim is not made in good faith, but is a mere colourable pretence to obtain or to keep possession of such property, it will not be available as a defence. That however will depend upon the facts of each case. 11. In the present case, the accused persons and Benudhar, P.W. 4 come from the same family, having one common ancestor. Some of the properties still stand recorded jointly in the name of all of them, though the disputed property stands recorded in the name of Benudhar's branch alone. It is admitted by P.W. 4 that the disputed property still remains to be partitioned. Thus even though it has been separately recorded in the name of Benudhar's branch, the accused persons may honestly believe that they had still the right to the said property, and even if they had no right., there is no room for controversy that the dispute they raised, is a bonafide dispute as to title and possession. Thus, the accused persons cannot be held to have dishonestly removed the crop. Such removal would not amount to an offence has been accepted by a number of decisions of different High Courts in India, see Suraj Ali v. Arphan Ali AIR 1917 Cal 648; Abdul and Another Vs. Emperor, ; Kalicharan v. Kartic Chandra 29 CLT 425; In Re: Dr. Puchalapalli Ramachandrareddi, ; Niranjan Prakash and Another Vs. Manni Lal Dwivedi, ; AIR 1926 Lahore 683a; AIR 1927 404 (Nagpur) ; Sitaram Bholaram v. State AIR 1953 MB 79 and Satish Ch. Ghosh v. Ratha Ballav Dalal AIR 1962 Tri 25. 12. Emperor, ; Kalicharan v. Kartic Chandra 29 CLT 425; In Re: Dr. Puchalapalli Ramachandrareddi, ; Niranjan Prakash and Another Vs. Manni Lal Dwivedi, ; AIR 1926 Lahore 683a; AIR 1927 404 (Nagpur) ; Sitaram Bholaram v. State AIR 1953 MB 79 and Satish Ch. Ghosh v. Ratha Ballav Dalal AIR 1962 Tri 25. 12. The very essence of the offence is that the removal must be with a dishonest intention to make a wrongful gain for himself and to cause a wrongful loss to the other, see K.N. Mehra Vs. The State of Rajasthan. In a case Suvvari Sanyasi Appara and Anr. v. Boddepalli Laxminarayan and Anr. 1962 S.C.D. 146, their Lordships held that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to a theft unless there is not only no legal right, but no appearance or colour ora legal right. In another decision of the Supreme Court in Chandi Kumar Das Karmarkar and Anr. v. Abanidhar Ray 1964. S.C.D. 287 : 1964 (1) S.C.J. 419 , their Lordships observed that a claim of right in good faith, if reasonable, saves the act of taking from being a theft, where the taking of moveable property is in assertion of a bona fide claim of right, though it may amount to a civil injury, does not fall within the offence of theft. Of course, whether a plea is a bona fide one or is a mere pretence is mainly a question of fact and has to be seen from a number of circumstances. 13. Thus, the law appears to be well-settled that when a bona fide claim of right exists it can be a good defence in a prosecution for theft. Whether the claim is bona fide one or not, has to be examined in the background of the facts of each case. Mere putting forth a claim is not sufficient. In that event, any thief may advance a false claim to the property which is the subject-matter of theft and contend that his claim is a bona fide one. Whether the claim is bona fide one or not, has to be examined in the background of the facts of each case. Mere putting forth a claim is not sufficient. In that event, any thief may advance a false claim to the property which is the subject-matter of theft and contend that his claim is a bona fide one. It is for that reason the Courts are caned upon to examine the bona fide of the claim of right with a very great care with a view to find out whether the plea advanced were merely a false pretence or it is a fair claim made in good faith in assertion of an existing right. Otherwise any imposter without any right whatsoever may put forth such a claim in trial of an offence u/s 379, Indian Penal Code. In cases of offence u/s 379, it is always essential for the prosecution to prove beyond all reasonable doubt that the complainant was in possession of the property which is the subject of theft and that in cases of theft of crops it, is a material fact or to be considered as to who had grown the crops. 14. There are authorities to show that if an accused removed the crop grown by the complainant, he must necessarily be attributed with a dishonest intention and his claim to the property cannot be entertained as a bona fide, one. No doubt while examining a case of bona fide claim of right the question as to who grew the crop is a material consideration because the man who removes the same must have known that he has made a wrongful gain for himself and whatever might be his claim to the land itself he had no right to the crop grown by another at his own costs. This, however, cannot be laid down as an inflexible rule of law that in such cases the plea has to be rejected as a matter of course. There may be variety of cases where a bona fide claim may be put forth by a person in the crop raised by another in such cases however the plea of claim has to be examined with greater care than the other types of cases. It is difficult to foresee and enumerate such cases. There may be variety of cases where a bona fide claim may be put forth by a person in the crop raised by another in such cases however the plea of claim has to be examined with greater care than the other types of cases. It is difficult to foresee and enumerate such cases. As I have said, the facts of case have to be examined to find out the existence of a bonafide claim of right. It is always necessary that in such cases the Courts should give a clear 'finding if the assertion of the bona fide claim of right is well-founded or not. 15. We have already seen that the disputed property was claimed by the accused persons as part of their ancestral property and it was admitted by P.W. 4 not to have been partitioned. In the background of the case, the claim put forward by the accused person cannot be said to be unfounded and cannot be rejected as a mere colourable pretence. Thus, no case has been made out to convict them u/s 379, Indian Penal Code and they have been rightly acquitted by the learned trial Court. The order of acquittal is accordingly maintained and the appeal dismissed. Final Result : Dismissed