Deonandan Singh and Others vs Thakur Singh and Others

Narayan, J.—This is an application by the second party to a proceeding u/s 115, Criminal P.C. The subject of the dispute is about 50 to 60 bighas of bakasht lands, and the learned Sub-divisional Magistrate of Jehanabad has made an order of attachment in the following terms:

As there is a serious apprehension of breach of peace as said above, the lauds in dispute are attached u/s 145(4), Criminal P.C. and the local Police is directed to get the crops harvested through the local Sirpanch and the Bojhas kept separately. The Bojhas of paddy crops already out by the men of the landlords are also attached u/s 145(4), Criminal P.C. in the Khalihan.

The present application is directed against the latter part of the order relating to the Bojhas of paddy crops already cut.

On 20-11-1947 a proceeding u/s 144, Criminal P.C. had been drawn up by the learned Sub-divisional Magistrate, and on 5-12-1947 he cancelled notice against these petitioners and made the notice absolute against the opposite parties. Thereafter, the petitioners cut the paddy crops of the disputed plots and stored them in plots Nos. 290 and 265 where the paddy bundles of certain undisputed lands had been stored from before. It is said that a few days after, under the executive orders of the District Magistrate, the Sub-divisional Magistrate drew up a proceeding u/s 145, Criminal P.C. out of which this application arises, with respect to the said bakasht lands. The learned Magistrate as already pointed out, attached the lands as well as the paddy bundles lying in the Khalihan in plots No. 290 and 265. Some thrashed paddy kept in that Khalihan was also attached. The petitioners objected to the attachment, but their objection was overruled. They then moved the District Magistrate against the order of the Sub-divisional Magistrate, but the learned Additional District Magistrate by his order dated 3rd February 1948 rejected this application. The second party have, therefore, come up to this Court in criminal revision.

The contention on behalf of the petitioners is that the crops that had already been cut and kept-in the Khalihan which lies in plots which are not the subject-matter of dispute are movable property, and that consequently the Magistrate had no jurisdiction to attach them u/s 145(4), Criminal P.C. The proviso to Section 145(4) under which the attachment has been made, runs as follows:

Provided that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute pending hia decision under this section.

The question, therefore, arises whether the produce of these lands which had already been cut and brought to the Khalihan can be regarded as the subject of dispute. In my opinion, there is no substance in the contention of the opposite party that the produce which had been cut before the dispute arose should also be regarded as the subject of dispute.

In Rajindra Lull v. Briehh Kurmi A.I.R.1938 Pat. 527 it was held by this Court that.

crops out and severed from the land are from their very nature moveable property, To hold that such crops do come within the meaning of Section 145(2) would be unduly straining the meaning of ''immovable property'' to which alone the provisions of Section 145 are applicable,

No doubt this is a decision only by a single Judge of this Court, but his Lordship Chatterji J. followed the decision of the Calcutta High Court in Bamzan Ali v. Janardan Singh 30 Cal. 110. This Calcutta case was decided by a Division Bench of that Court and it was pointed out by their Lordships of the Calcutta High Court that chapter XII, in which Section 145 occurs, is headed "Disputes as to immovable property" and that it was absolutely clear that by "crops and other produce of land" in Sub-section (2) were intended to be meant crops or other produce of land attached to the land, and not crops which had been severed. Even if a contrary view has been ex-pressed by any of the other High Courts, we ought to follow these decisions of the Calcutta High Court and our own High Court.

In another case of this Court in Sunder Mull v. Jhari Lall AIR 1917 Pat. 183 a similar view was taken and it was held that

a Magistrate has u/s 145, Criminal P.C., power to deal with moveable property which represents the produce of the land in dispute if the produce is attached to or if the same is cut and lying on the land in dispute under the section; but if the produce Of the land has been removed and is wholly unconnected with and dissociated from the land in dispute then the Magistrate is deprived of jurisdiction to deal with It u/s 145, Sub-section (2).

It is true that this was a case of a mica mine, but the principles laid down by their Lordships are, in my opinion, fully applicable to the facts of this case.

Reliance has been placed by the learned advocate for the opposite party on a decision of the Sind Court reported in Emperor v. Rahimdino AIR 1928 Sho 68. From the facts of this reported case, it appears that reaping had begun at least over a portion of the disputed land after the proceedings had been initiated. Moreover Sind does not appear to be consistent in its views on this point, as it was held by the Sind Court in Belumal v. Pherumal Madanmul AIR 1928 Sind 193 that.

crops which have been cut and gathered on the threshing floor are not crops or other produce of land within the meaning of Sub-section (2) of Section 145, Criminal P.C.

The learned advocate for the opposite party has also relied on a Madras case reported in Srinivasa Pillai v. Sathayappa Pillai CriL.J. 295. But it appears that in this case the Magistrate''s order was confined to crops harvested since the beginning of the disturbance. The fact of this case cannot be regarded as similar to'' the f acts of the present Case before us.

The Allahabad case in Gaya Prasad and Others Vs. Emperor, has also been referred to by the learned advocate. But the facts of this case also cannot be regarded as similar to the facts of the present case before us, as it appears from the judgment of Malik J. that the trees which had been it from the subject of dispute were still lying on the ground which was the subject of the dispute. Even if, however, this ruling contains observations which can go to help the opposite parties before us, I do not think we should follow this decision of a single Judge of the Allahabad High Court in preference to the decision of a single Judge of this Court or of a Division Bench of the Calcutta High Court.

I, therefore, hold that the learned Magistrate had no jurisdiction to attach the Bojhas Of paddy crops or the crops lying in the Khalihan which stands on plots Nos. 290 and 265 which are not the plots in dispute.

The application is allowed and the order of the learned Sub-divisional Magistrate attaching the Bojhas of paddy and the paddy crops lying in the Khalihan on plots Nos. 290 and 265 is set aside.

Imam J

In the relief portion of the application tiled in this Court, only that portion of the order passed u/s 145, Criminal P.C. is questioned which directs the attachment of the paddy crops stored in the Khalihan in plots Nos. 290 and 265. Section 145, Criminal P.C is to be found in chap. XII, which is headed "Disputes as to Immovable property "The first Sub-section to the section uses the expression "a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction." Sub-section (2) has explained as to what is meant by the words ''land or water.'' According to this Sub-section, it includes buildings, markets, fisheries crops or other produce of land and the rents or profits of any such property. That it was necessary to explain the expression "land or water" appears to be clear, for instance, a building on any such land could not be regarded as land without an explanation. Accordingly in Sub-section (2) it was specifically stated that the expression ''land or water'' does include a building. A building cannot but be on land, and therefore, it must be regarded as a part of the land capable of attachment in proceedings under 8. 145. similarly a market cannot be held except on land, and if on the land, which is the subject-matter of an order u/s 145, there is a market such market is capable of attachment under the provisions of Section 145. Similarly, every fishery must be on some land. It cannot exist independently of land, and if the land in question is the subject-matter of dispute, obviously the fishery on that land is capable of attachment u/s 145. If with reference to these three matters like buildings, markets and fisheries the obvious reading of Sub-section (2) means buildings, markets and fisheries on the land in dispute, I can for myself see no reason to suppose that the Legislature intended that the crops or other produce of land should include crops or other produce which were not to be found on the land at the time when an order u/s 145 was issued. Similarly, in the matter of rents and profits, Sub-section (2) mikes it clear that there can be a Section 145 proceeding where there is a dispute between the parties as to who has the right to Collect the rent. Obviously collection of rent is connected with the land. Similarly collection of the profits of such land must be connected with the land and, therefore, subject-matter of Section 145. To my mind, Sub-section (2) admits of no doubt that it cannot refer to crops or other produce of land which are no longer to be found on the land which is the subject of dispute at the time when an order u/s 145 was issued. Crops which are standing might be regarded as immovable property, but once severed from the land they become movable property, and if they are still on the land at the time when the Section 145 order is passed, they would be liable to be attached under the section for the reason that they are crops which are on the land at the time when the order u/s 145 was passed. Crop which has been removed to a place for storage which is not the subject-matter of dispute cannot, in my opinion, be the subject of attachment, though the crop may have been grown on the land which ultimately formed the subject-matter of dispute. In this particular case the position is all the more difficult, as it is the allegation of the petitioners that the crops were removed before the Section 145 order was passed and after the order u/s 144 passed in their favour. This crop was removed to a Khalihan which is not the subject-matter of the Section 145 proceedings and on which there were other crops stored which were the produce of lands which are not the subject-matter of dispute. It would be next to impossible to distinguish by any identification marks as to which were the crops from the disputed land and which were the crops from the non-disputed lands. To my mind, to read this sub section in the way as some Courts have done in India, namely, to include crops which have been severed and removed from the disputed land, is to introduce a confusion which is bound to lead to untold difficulties. At the end of the proceedings u/s 145, the successful party, I dare say, has a legal remedy to recover the value of the crops which may have been removed by the unsuccessful party.

Mr. Ray on behalf of the opposite party referred to Sub-section (8) of Section 146 and urged that this Sub-section, which was the result of an amendment in 1923, speaks of "any crop or other produce of the property." But here again, this Sub-section must be read along with Sub-sections (1) and (2) of the section. In my opinion, there is no justifiable ground for holding that Section 145 was ever intended to be used with reference to crops which had already been removed and stored in another place which was never the subject matter of dispute. I agree with the view taken by my learned brother and have thought it necessary to express my own opinion on the wording of the section itself independent of what may have been stated in the authorities to which he has referred. I may, however, add that it has, been the practice of this Court to lean in favour of a decision from the Calcutta High Court rather than on any other High Court. As it happens, a single Judge of this Court relied upon the decision in Ramzan Ali v. Janardan 80 Cal. 110 and, if I may say so respectfully, rightly. That being the position, I am of opinion that the view taken by the Calcutta High Court is the correct one.

I would accordingly allow the application and set aside that part of the order by which the crop stored in the Khalihan in plots Nos. 290 and 265 was attached.