Dayal, J. - (1.) THIS is a revision by B.L. Mehra against the confirmation of his conviction and sentence under Section 379, IPC by the Assistant Sessions Judge Dehra Dun. The applicant occupies a bungalow on the Rajpur Road. It was alleged that he got a number of bamboos cut from the bamboo clumps inside the compound. He denied cutting them and alleged that some persons who may be on behalf of the landlords were cutting the bamboos, he took objection to the same and thereupon they gave up cutting the bamboos. The courts below have found against the accused and held that it was he who got the bamboos cut and that the number of bamboos actually cut were more than what remained on the ground and were alleged to the total number of the bamboos cut according to accused.
(2.) THERE may have been a friction between the applicant and the landlord on account of his alleged forcible occupation of the bungalow but the finding of fact arrived at by the courts below has to be accepted. - The main contention for the applicant it that he was entitled to cut these bamboos as he was a tenant of the bungalow in whose compound the clumps of bamboos stood. It has also been urged that even if he was not so entitled (sic) must be held that (sic) out them bonafide thinking that he was entitled to them. No question of his cutting them bonafide arises when he denies having cut them. I am of opinion that he had no right to these bamboos and could not have justifiably cut them. Section 108 of the Transfer of Property Act lays down: 108. In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities or such of them as are applicable to the property leased. The rights of the lessees are laid down in Rules (d) to (q) of Section 108 of the (Act. Rule (o) lays down: The lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell timbers, pull down or damage buildings, work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto." The cutting of bamboos does amount to felling timbers. Bamboos are used for building purposes. A lessee is not entitled to fell timbers. It follows that the lessee has no rights to the bamboos. If the bamboos he considered to be a product of the leased property in view of the fact that fresh bamboos sprout on the cutting of bamboos, the lessee can only use the products. The cutting of so many bamboos will not come within such user. I am however of opinion that the product of such bamboos cannot be said to be the product of the leased property. The word 'product' in this Rule (o) refers to such substances which can be appropriated without destroying the main object. Such products in the case of bamboos would be several. The bamboo itself is not to be deemed as the product which can be used by the lessee by cutting it down and then deposing it of or using it himself.
(3.) LASTLY it is urged that the sentence of Rs. 100 fine is heavy. I do not consider so when I find that a number of bamboos were also actually appropriated by the accused.;