ORDER O.P. Trivedi, J. - This criminal reference has been made by the Second Temp. Civil-and Sessions Judge Sitapur. 2. Janki opposite party brought a complaint in the Nyaya Panchayat against Badri and Natha u/s 379, IPC with allegation that they had cut away the Neem trees belonging to him and committed theft of the wood. The learned Magistrate found that Badri and Natha were co-owners of the trees along with Janki complainant and were also in joint possession of the trees. Inspite of this finding he found Badri and Natha guilty of an offence u/s 379, IPC and sentenced them to a fine of Rs. 50/-each in default to undergo rigorous imprisonment for ten days. 3. Badri and Natha filed a revision before the Civil and Sessions Judge who expressed the opinion that no theft was committed by Badri and Natha, they being joint owners of the trees and also being in joint possession of the same with the complainant and for this view he relied upon the case of Phul Singh and Ors. v. King Emperor 1912 ALJR 527. He has made this reference with a recommendation that the order of conviction and sentence passed against the revisionists Badri and Natha may be set aside. 4. I have heard the learned Counsel for the parties and I have also seen the judgment of the learned Civil and Sessions Judge. The Magistrate has chosen not to submit any explanation. 5. Learned Counsel for Janki opposite party relied upon two rulings in support of the order of conviction and sentence passed by the Magistrate: Queen Empress against Ponnurangam ILR 10 Mad 196 and Virankutti against Chiyamu ILR 7 Mad 557. In the case of Virankutti against Chiyamu a complaint was filed against Chiyamu and ten others with the allegation that they forcibly entered the house of the deceased person while it was being guarded by watchmen and removed property of the deceased with the dishonest intention of depriving the complainant's sister and her son of the share to which they were entitled under the Muhammadan Law. The question arose whether Chiyamu had committed dacoity. The question arose whether Chiyamu had committed dacoity. Their Lordships of the Madras High Court observed that the question was whether there was any theft, it being an essential ingredient of the offence of dacoity and concluded that assuming that there was a possession, even jointly with the accused, by the prosecutor and that the accused removed the property dishonestly within the meaning of that term in the Penal Code, the removal would constitute theft. With great respect I find myself unable to accept the view which was expressed in this case because their Lordships gave no reasons for the opinion expressed by them. In fact they seem to have proceeded on the assumption that the removal of property by the accused was 'dishonestly' whereas the precise question before them was whether the removal of property could be found to be dishonest within the meaning of 'dishonesty' given in Section 24 of the IPC. 6. As regards the case Queen Empress against Ponnurangam, theft of joint property of a family was committed by one of the family members though a co-parcener. It was held that if the co-parcener takes it from joint possession and converts such possession into separate possession that act would amount to theft. The order of conviction was set aside and the Magistrate was directed to retry the case and to have regard to the definition of 'theft' in Section 378 IPC and the word 'dishonestly' in Section 24 IPC. Here again the learned Judge of the Madras High Court did not state any reasons for coming to the conclusion that if a co-parcener takes joint property into his possession and converts it into separate possession it would amount to theft. They merely referred to Weir's Criminal Rulings p. 154 on Section 379 IPC. In the circumstances with great respects, I cannot find myself in agreement with the view expressed by their Lordships of the Madras High Court in this case. 7. In Phul Singh and Ors. v. King Emperor (supra) a report was filed by a tenant against the landlord with the allegation that certain crop had been jointly raised by the landlord and the tenant but the landlord removed the entire crop whereupon the tenant filed a complaint u/s 379, IPC against him. The question arose whether the landlord could be held guilty of an offence punishable u/s 379 IPC. The question arose whether the landlord could be held guilty of an offence punishable u/s 379 IPC. His Lordship observed in this connection: There can be very little doubt, as the Sessions Judge has pointed out, that the accused Phul Singh did share in the cultivation and therefore he must be deemed to have been in possession of the property alleged to have been stolen. The case is clearly not one in which the accused could possibly have been convicted of theft. I, therefore, accept the recommendation of the Sessions Judge and set aside the convictions and sentence. I find myself in respectful agreement with the view which was expressed in this case and with the reasons which induced the above decision. 'Theft' has been defined u/s 378, IPC as follows: Whoever, intending to take dishonestly any moveable property out of the possession of any person without any person's consent, moves that property in order to such taking, is said to commit theft. In this connection the two essential ingredients of theft are: (1) removal of property in order to take it out of the possession of any other person without that person's consent; and (2) Such act of removal having been committed dishonestly. 8. Now when the property is jointly owned and jointly possessed by the accused and the complainant then the accused will be deemed in the eye of law to be in possession of the property. That being so it is impossible to predicate removal of such property by the accused from the possession of any person out of the possession of any person. The pharse "out of the possession of any person without that person's consent" to my mind implies that the possession of the property supposed to be stolen must belong to a person other than the person accused of theft. This naturally embodies notion of exclusive possession of the person from whose possession the property is said to have been removed by the accused. If the accused is in joint possession with another then it cannot be said that the property has been removed by the accused from the possession of another person for the simple reason that the accused himself is in possession of the property and one does not remove property oat of the possession of any one when the property is in one's own possession. It is this aspect of the matter that seems to have weighed the decision of this Court in the case of Phul Singh and Ors. v. King Emperor. In the present case, therefore, it having been found by the Magistrate himself that the revisionists and Janki were in joint possession of property the ingredient of removal of property within the meaning of Section 378 is absent. As regards the second ingredient, 'dishonestly' reference should be made to the definition of the word given in Section 24 IPC, which says: 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'. 'Wrongful gain' is defined u/s 23, IPC as gain by unlawful means of property to which the person gaining is not legally entitled and 'wrongful loss' is defined under the same section as loss by unlawful means of property to which the person losing it is legally entitled. Now in this case it cannot be said that the revisionists Badri and Nitha were not entitled to the property which was taken away by them because a joint owner has title in every inch of the joint property. In the same way it cannot be said that the complainant was legally entitled to the property which he lost by the wrongful act of the revisionists because Badri and Natha were joint owners of the property and Janki could not claim title to any specific part of the tree to the exclusion of Badri and Natha and therefore the act complained could not be described either as an act of wrongful gain or wrongful loss. Therefore, the second ingredient of Section 378, IPC, namely, 'dishonestly' also is not to my mind established in this case. Upon these considerations I am of the view that the Civil and Sessions Judge was right in taking the view he did and this reference is entitled to be accepted. 9. I accept the reference and quash the order of conviction and sentence passed by the Magistrate against Badri and Natha. The fine, if any already paid shall be refunded to them.