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Gaya Prasad and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1948All94
AppellantGaya Prasad and ors.
RespondentEmperor
Excerpt:
- - , relates to disputes as to immovable property and if a magistrate is satisfied that a dispute likely to cause a breach of the peace exists 'concerning any land or water or the boundaries thereof,'then he may proceed under that section. 6. section 145 being a preventive section it should be given a liberal interpretation and if the dispute is as regards land then the magistrate would clearly have jurisdiction to pass an order relating to moveable property which may be attached to the land or appertains to it......learned magistrate could not proceed under section 145 of the code to attach the portion of the crop lying in the khaliyan. the facts of the case in ramzan ali v. janardhan singh ('03) 30 cal. 110 are exactly similar. in that case too crop had been cut and removed to the threshing-floor and the court held that section 145 would not apply to such a ease, though their lordships in the judgment said that crops and other produce of the land were intended to include crops and other produce of the land attached to the land and not crops which had been severed as in that ease. in sajad hussain v. nanak chand 4 a.i.r. 1917 all. 35 the dispute was about a plot of land and about certain trees which had been severed from the land but which were still lying on the spot. shadi c.j., held that the.....
Judgment:
ORDER

Malik, J.

1. The learned Sessions Judge of Jhansi has made this reference on the ground that the Magistrate had no power under Section 146, Criminal P.C., to order the attachment of the trees which had already been severed from the earth In Khata Khewat No. 6, patti Raghubar, mahal Rao Pahar Singh, village Patha, there are a large number of trees of various kinds which, it is claimed by the complainant, belong to certain minors. The complaint was filed by their guardian. The allegations were that Bhagwan Das and Gorey Lal Brahmans of village Piparia in collusion with Gaya Prasad, son of Bindraban began to cut those trees on 21st and continued to do so on 22-1-1946. He asked them to desist from cutting the trees, but the accused threatened him saying that they would kill and be killed but would not desist from cutting the trees. There was, therefore, an apprehension of the breach of the peace and the complainant prayed that the police might be asked to attach the trees pending the decision of the ease.

2. The learned Magistrate sent the complaint to the station officer for enquiry and report. The report from the police was that there was an apprehension of the breach of the peace. The trees were, therefore, attached on 31-1-1946, and notices were issued to the accused to show cause. On behalf of the accused an objection was taken that they were in rightful possession of the trees and they had a right to cut the same, and as regards the trees which had already been cut it was said that the Magistrate could not pass an order under Sections 145 and 146 of the Code.

3. The learned Magistrate after recording the evidence came to the conclusion that neither party could be said to be in exclusive possession of the trees and that there was an apprehension of the breach of the peace and it was, therefore necessary that the attachment should be maintained. He further held that the attachment of the trees cut would continue until the parties got their rights determined by the civil Court.

4. There was a revision filed against that order before the learned Sessions Judge of Jhansi. The learned Sessions Judge has not suggested any interference with the order with regard to the trees which are still standing. He has, however, made this reference as regards the timber which is lying on the spot, the trees having already been severed from the ground.

5. Section 145, Criminal P.C., relates to disputes as to immovable property and if a Magistrate is satisfied that a dispute likely to cause a breach of the peace exists 'concerning any land or water or the boundaries thereof,' then he may proceed under that section. Under Sub-section (2) 'land or water' includes buildings, markets, fisheries, crops or other produce of land.

6. Section 145 being a preventive section it should be given a liberal interpretation and if the dispute is as regards land then the Magistrate would clearly have jurisdiction to pass an order relating to moveable property which may be attached to the land or appertains to it. In this case the dispute is between certain co-sharers and relates to their rights in certain trees growing on land. The accused are said to have been given the right to cut the trees by certain persons who claim that they are the exclusive owners of the trees, while the complainant claims that the minors have also a share in the trees. This dispute is on the basis that the land on which the trees stand is in a joint khewat belonging to the minors and the persons who are said to have given the accused the right to cut and remove the trees.

7. Some cases are mentioned in the judgment of the learned Judge and certain others have been placed before me by the learned Deputy Government Advocate. In Chaurasi v. Rama Shankar ('06) 28 All. 266 the dispute related to a mahua crop which at the date of the order of the Magistrate had been collected, saved and also removed from the place where it grew. This Court held that Section 145 was not applicable. Some stress was laid by the learned Counsel for the appellant on the fact that the crop had actually been removed from the land and it could not, therefore, properly be a crop or produce of the land within the meaning of the section. In Sita Das v. Jaisri Das : AIR1927All99 the dispute related to a plot, No. 116, in village Bilaspur and the crop standing thereon. On the date of the dispute the crop had already been cut, and stored in the khaliyan where it had been mixed with crop from other fields and this Court held that the learned Magistrate could not proceed under Section 145 of the Code to attach the portion of the crop lying in the khaliyan. The facts of the case in Ramzan Ali v. Janardhan Singh ('03) 30 Cal. 110 are exactly similar. In that case too crop had been cut and removed to the threshing-floor and the Court held that Section 145 would not apply to such a ease, though their Lordships in the judgment said that crops and Other produce of the land were intended to include crops and other produce of the land attached to the land and not crops which had been severed as in that ease. In Sajad Hussain v. nanak Chand 4 A.I.R. 1917 All. 35 the dispute was about a plot of land and about certain trees which had been severed from the land but which were still lying on the spot. Shadi C.J., held that the trees which had been severed from the land

do not come within the purview of Section 145, Sub-section 2, and that no order under Section 145 could be made with respect to the wood lying upon the ground.

He, however, went on to hold:

The order of the Magistrate does not, however, affect this wood, and no interference is consequently necessary There can be no doubt that the petitioners, who are forbidden to disturb the possession of the respondents, have no means of access to the land and consequently to the wood lying there, and have no alternative but to get the dispute as to the title settled in a Civil Court.

That being the state of authorities it is now necessary to decide whether, in a dispute of the kind before me, trees which have*been severed from the ground but are still lying on the spot do or do not come within the words 'crops or other produce of land.' I have already said that the section should be given a liberal interpretation, its object being to prevent as far as possible a breach of the peace and to enable the parties to settle their disputes as regards title in a civil Court, though to my mind the section will not apply where the dispute relates to movable property unconnected with land. But in a case of this kind where the main dispute is as regards immovable property and the crops or the produce have not yet been removed from the land which is in dispute the word 'land' as used in this section is wide enough, to include such crop or such produce. As the trees are still lying at the place where they were standing and have not been carried away and stored elsewhere, the decisions of this Court referred to by me above are distinguishable.

8. I, therefore, hold that the attachment order passed by the learned Magistrate under Section 146 was a proper order and reject the reference.


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