Rajindra Lall vs Brich Kurmi and Others

Chatterji, J.—This is an application in revision by Rajindra Lall, a member of the first party in a proceeding u/s 145, Criminal P.C., in which a First Class Magistrate of Sitamarhi has passed an order declaring the possession of the second party, seven in number, over the lands specified in the proceeding together with the crops thereof. The proceeding was started by the Sub-divisional Magistrate of Sitamarhi on receipt of a report from the police that there was apprehension of breach of peace regarding a dispute between the two parties over paddy crops stored in a khalihan standing on plot No. 1780 in village Parsauni, Police Station Sheohar.

The notice issued by the Magistrate in that proceeding runs as follows:

Whereas from the report of the Police, Sheohar, dated 22nd December 1937, I am satisfied that a dispute likely to cause a breach of the peace exists between the above named parties in regard to the area specified below situated in village Parsauni, P.S. Sheohar, within the local limits of my criminal jurisdiction, I hereby order the aforesaid contending parties to appear before me in person or by duly authorized agent on 15th January 1938 at 10 A.M. and put in written statements as well as oral and documentary evidence in support of their respective claims as respects the fact of actual possession of the subject of dispute. The property in question is also attached u/s 145, Criminal P.C.

S.N. B. Katha. Dhur. 941 14 9 941 1 2 0 941 10 0 1737 5 10 1737 10 5 933 7 0 901 4 5 671 1 6 0 941 10 0 941 15 0 with paddy bundles in the khalihan.

From this it appears that plot No. 1780 was not included in the proceeding, but it is common ground that the khalihan in which the paddy crops were stored is in that plot. The plots in dispute were recorded as bakasht lands of the landlords at the last survey.

The case of Rajindra Lall of the first party is that his father took settlement from Bachu Kuer, widow of the recorded landlord, of 5 bighas of land covering plots Nos. 1737, 1744 and part of plot No. 941 by an unregistered patta dated 15th Baisakh 1307. The other three members of the first party do not lay any claim to the land. Rajindra Lall alleges that he grew the crops in question on some of the disputed plots and after cutting them he stored the paddy in his khalihan on plot No. 1780.

The case of the second party on the other hand is that the seven different members of that party took settlement of different portions of the disputed plots from the landlord by registered kabuliats and they have been in possession of the same. They out the crops in question and stored them in the khalihan.

The learned Magistrate, for reasons which do not appear to be at all convincing, has held that the lands in dispute are in possession of the second party and the crops thereof which are under attachment evidently belong to them. He first of all mentions that the subject of the dispute is seven heaps of paddy bundles stored in a khalihan in plot No. 1780. Then while dealing with the ownership or possession of these seven heaps of paddy, he says that the very number 7 suggests that the seven heaps belong to seven persons and therefore they belong to the seven members of the second party and not to the first party, because one only of the four members of that party is the claimant while the other three have disowned the said heaps or the fields from which they came. He does not at all discuss the evidence of possession over the plots in dispute because apparently he thought that the real subject of the dispute was the paddy bundles.

The main point urged by Mr. Mahabir Prashad, the learned Counsel appearing for the petitioner, is that the heaps of paddy in question not being immovable property, the learned Magistrate had no jurisdiction to draw up any proceeding u/s 145, Criminal P.C., in respect thereof. On the other hand it is contended by Mr. Sarjoo Prashad, the learned advocate appearing for the opposite party, that the real dispute was with regard to the lands and necessarily therefore the paddy crops that were cut from those lands were also in dispute. Having regard to the written statements filed by the two parties there is no doubt that the origin of the dispute was with regard to possession over the lands. But the crops having already been cut and removed from the lands there is no present apprehension of breach of peace on account of the dispute over possession of the lands. Such apprehension may arise in future at the next sowing or harvesting season. Obviously the present apprehension of breach of peace relates to the paddy sheaves. The plot No. 1780 on which the paddy sheaves are stored is not the subject of the proceeding. The position therefore is that the likelihood of breach of peace for the present exists only with regard to the paddy sheaves.

It appears that the crops were cut and removed from the lands before the proceeding u/s 145, Criminal P.C., was started. In these circumstances I do not consider the plots themselves could properly be made the subject of the proceeding. As regards the paddy sheaves they are not immovable property and could not there, fore be the subject of a proceeding u/s 145, Criminal P.C. Mr. Sarjoo Prashad on behalf of the opposite party contends that crops do come within the meaning of immovable property u/s 145, Clause (2), Criminal P.C., which says that

for the purposes of this Section the expression ''land or water'' includes building, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

In support of this contention he relies on the case in Rahimdino v. Emperor AIR 1928 Sind 68. This case no doubt lays down that the word ''crops'' in Section 145, Clause (2) would include cut and stored crops about which there was a dispute likely to cause a breach of peace. But with all respect to the learned Judges who decided that case, I cannot agree. Crops cut 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, Clause (2) would be unduly straining the meaning of ''immovable property'' to which alone the provisions of Section 145 are applicable. I am supported in this view by the case in Ramzan Ali v. Janardhan Singh (1903) 30 Cal. 110 therefore of opinion that the proceeding u/s 145, Criminal P.C., drawn up in the present case was without jurisdiction.

It is contended by Mr. Sarjoo Prashad that the plot No. 1780 on which the paddy sheaves are stored is also in dispute and therefore the proceeding is in order so far as the paddy sheaves are concerned. But as a matter of fact the proceedings before the learned Magistrate make it quite clear that the parties are not in dispute with regard to this plot. The learned Magistrate himself clearly says that "this plot is not a subject of dispute in this proceeding."

Under the circumstances I am constrained to set aside the order u/s 145, Criminal P.C.

The petition is accordingly allowed. If the learned Sub-divisional Magistrate considers that there is still likelihood of breach of peace regarding the paddy sheaves, he will proceed according to law to prevent such breach.