Vaithi Matharan and Others vs Narayanaswami Iyer

Srinivasa Iyengar, J.—The order of the Sessions Judge directing a re-trial of the accused in this case for the offence with regard to which they were discharged by the Magistrate is wrong. There was really no evidence on the record with regard to the ownership of the tank. It appears from the evidence of the karnam that it was poromboke and it was a poromboke tank. So long as the villagers agree, it is well-known that the temple authorities or the headman of the village lease out the yield from such common resources and utilise the same for common purposes. The mere fact, therefore, that the fishery in this tank was leased out in previous years by the temple trustee would not in view of the nature of the common practice go to establish the ownership in the tank. Unless the ownership in the tank is established, there is no question of possession of the fish and there is a fortiori no question of any theft of any fish. After all, I am not at all satisfied that the accused in this case did what they did dishonestly and that they did not catch the fish" asserting a bona fide right thereto. I think the criticism of the Sessions Judge that the word bona fide did not appear in the judgment of the Magistrate is somewhat meticulous. There is no doubt whatever as to what the Magistrate really meant to do. The order of the Sessions Judge is, therefore, set aside.