JUDGMENT : G.K. Misra, C.J. - Arakhita Swain (Petitioner) and his wife Rahasa (accused No. 2) and his son Jogi (accused No. 3) were tried u/s 379, Indian Penal Code. The trial Court acquitted the wife and the son, but convicted the Petitioner and sentenced him to R.I. for 6 months. The appeal was dismissed by the learned Sessions Judge. Prosecution case is that Narasingha Mohapatra (p.w. 1) was the bhagchasi of the disputed land under Kandhum (p.w. 3) the mother of the Petitioner. In a family partition the disputed land had been allotted to the share of p.w. 3 who was in possession through the bhagchasi p.w. 1. On 20.10-1970 Bauri Swain (p.w. 2), another son of p.w. 3, and p.w. 3 sold the disputed land by a registered sale deed to p.w. 1. On 28-11.1970 the Petitioner with others forcibly cut and removed the unripe paddy. The defence was one of complete denial In other words, the Petitioner does not claim that he was in possession, and grew the crop. He also denies to have removed the crop p.w.s. 1 to 3 and 5 to 7 were examined on the question of possession. Both the Courts have concurrently found that p.w. 1 grew the crop on the disputed land as a bhagchasi under p.w. 3 and the Petitioner forcibly cut and removed the unripe paddy. Mr. Sen for the Petitioner took me through the evidence. After having gone through them I am satisfied that the finding is unassailable. 2. Mr. Sen contended that the prosecution story that the disputed land fell to the share of p.w. 3 is disproved by the fact that the sale deed was executed by both p.ws. 2 and 3 and the non-production of the partition deed and that the land being joint family land, the Petitioner committed no offence even if he removed the paddy and that the dispute is a bonafide one. 3. Even assuming that the prosecution failed to prove that there was a partition amongst p.ws. 2; 3 and the Petitioner and that the disputed land fell to the share of p.w. 3. the conviction cannot be assailed. In a case of this type the real question to be gone into is as to who grew the crop. 3. Even assuming that the prosecution failed to prove that there was a partition amongst p.ws. 2; 3 and the Petitioner and that the disputed land fell to the share of p.w. 3. the conviction cannot be assailed. In a case of this type the real question to be gone into is as to who grew the crop. On the concurrent finding that p.w. 1 grew the crop and the defence being a mere denial, the Petitioner had no bonafides in removing the crop. On illustration would clarify the point. Suppose there was no partition in the family. If p.w. 1 was the bhagchasi in respect of the disputed land and he had grown the crop, then none of p.w.s. 2,3 and the Petitioner either individually of jointly are entitled to remove the crop. The offence of theft is on offence against possession and not against title. 4. On the aforesaid analysis, the conviction is well founded. 5. In the peculiar facts and circumstances of this case, the sentence appears to be heavy. Paddy worth Rs. 150/- had been removed. Even a heavy fine with compensation to p.w. 1 would have met the ends of justice. I reduce the sentence of 6 months R.I. to one of 1 month?s R.I. Mr. Sen says that the Petitioner has already undergone some sentence. In the circumstances it would rather be more onerous to the Petitioner to substitute the sentence of imprisonment by a sentence of heavy fine. Subject to the aforesaid modification on the question of sentence the revision is dismissed. Final Result : Dismissed