1. This revision is against an order under Section 145, Cr. P. C., passed by the Sub-divisional Magistrate of Rayagada declaring the opposite party to be entitled to possession of six plots of land in village Rachavikrampur and forbidding disturbance of such possession until eviction in due course of law. A revision petition filed before the Additional Sessions Judge of Jeypore under Section 437, Cr. P. C., was unsuccessful.
2. Village Rachavikrampur had been granted as Mokhasa by the Maharaja of Jeypore in favour of an ancestor of the opposite party and the last Mokhasadar was one Sivaramaraju. Petitioner Kamaraju is his own brother. Sivaramaraju died sometime in 1942 issueless and the petitioner alleged that his own son Nilakantam had been adopted by Sivaramaraju prior to his death. His case, therefore, is that his son Nilakantam as the adopted son of Sivaramaraju continues to be the Mokhasadar of the village and as such is in possession of all the lands in that village.
3. As early as 1908 Sivaramaraju had given usufructuary mortgage of nine plots of land in village Rachavikrampur to one Kenguva Lachhanna by a deed (Ext. 7) for a sum of Rs. 2,000/-. This Lachhanna was none else but the elder brother of the opposite party. In 1911 Sivaramaraju executed a second mortgage in respect of the same plots in favour of one P. Dhanam who in 1924 brought a suit (O. S. No. 2 of 1924) in the Court of the Agency Additional District Judge, Waltair, against Sivaramaraju and others on the foot of the second mortgage impleading the first mortgagee Lachhanna also as a party in that suit. After the passing of the preliminary decree it was transferred in favour of the opposite party No. 2, Mallikarjun, (who was the brother of Lachhanna) and four other persons whose names are not material in this case. The parties then compromised that mortgage suit and a final decree was passed in 1929 (Ext. 4) on the basis of the compromise. In execution of that final decree the whole of village Rachavikrampur was purchased by the decree-holders subject; of course to the previous mortgages and delivery of possession was also taken on 21-6-1938 (Ext. 3). It will be noticed that this delivery of possession was symbolical in the sense that it related to the equity of redemption only in respect of the disputed plots inasmuch as admittedly at that time those plots were in the possession of the first mortgagee Lachhanna.
4. While this litigation was going on between the mortgagees and the Mokhasadar, the Maharaja of Jeypore in 1928 brought a suit in the Court of the Special Assistant Agent of Parvatipur (O. S. No. 133 of 1928) for recovery of arrears of kattubadi and land cess from the Mokhasadar and obtained a decree. There was some litigation in respect of the first execution proceeding arising out of that decree which it is unnecessary to mention here. It is sufficient to state that in a later execution proceeding (E. P. No. 4 of 1946) arising out of the same decree the Maharaja attached the standing crops of the disputed six plots sometime in November 1947. The Maharaja impleaded only Sivaramaraju and Kamaraju in his petition and completely ignored the first mortgagee Lachhanna or the decree-holders in O. S. No. 2 of 1924. After attachment the Maharaja's dues were paid and then the Maharaja entered full satisfaction in the execution case whereupon the Special Assistant Agent passed an order on 11-1-1948 (Ext. A) directing release of the attached crops. In pursuance of this order the bailiff for the Court went to the village on 24-1-48 and delivered possession of the crops to the petitioner. By that time the crops had already been harvested and kept in seven heaps on two thrasing-floors by the tenants who had grown them and possession was delivered of the cut crops only.
5. A day before delivery of possession of the cut crops to the petitioner the opposite party on 23-1-48 filed a petition before the Subdivisional Magistrate of Rayagada claiming that they were in possession of the whole of village Rachavikrampur by virtue of the original usufructuary mortgage of 1908 and the delivery of possession obtained in execution of the final decree in O. S. No. 2 of 1924 and that they apprehended imminent breach of peace from the petitioner. This petition was sent to the local police for immediate enquiry and report. The police went to the spot on 25-1-48, again attached the cut crops which were then lying in heaps on the threshing-floors and submitted a report for action under Section 145, Cr. P. C. The learned Magistrate then drew up a proceeding under Section 145, Cr. P. C., on 30-3-48 in which he included the whole of village Rachavikrampur as the land in dispute. He also included the seven heaps of paddy crops that had been cut and kept on two threshing floors in the proceeding. The preliminary order under Section 145, Cr. P. C., is dated 10-4-48. After due enquiry the second party's possession was declared by the Magistrate.
6. Mr. P.V.B. Rao on behalf of the petitioner first contended that though the proceeding was originally initiated in respect of the whole of village Rachavikrampur the final order of the Magistrate was in respect of six plots of land and that consequently an illegality was committed and the 2nd party was also prejudiced in his defence. It is true that in the original proceeding the boundary of the lands in dispute indicated that the whole of village Rachavikrampur was the subject-matter of the proceedings. But this appears to be an error through oversight and both the parties were fully aware that the dispute was really in respect of six plots of land which formed part of the usufructuary mortgage of 1908. In the opposite party's show-cause petition dated 12-6-48 the lands in dispute were referred to as the lands of the usufructuary mortgage and the crops cut therefrom and not the lands of the whole village and their first witness Mallikarjun even in his examination-in-chief stated as follows:
'The present dispute relates only to the following lands situated in Rachavikrampur. (1) Chinna Heta; (2) Moregcdde Polam; (3) Kanchika Polam; (4) Pedda Jhore; (5) Khari Polam; (6) Uta Polam'.
(As the village is unsurveyed the lands can be referred to only by the names given to them by the villagers).
Thus there was no doubt as to what were the lands in dispute in the case and the cross-examination of the opposite party's witnesses as well as the evidence of the petitioner were all confined to the aforesaid six plots. The identity of the plots was also not in dispute because the petitioner Kamaraju (witness No. 3 of the second party) admitted even in his examination-in-chief that the aforesaid six plots formed part of the original usufructuary mortgage of the opposite party's brother Lachhanna. This admission completely disposes of one of the minor arguments raised by Mr. P. V. B. Rao to the effect that there is a discrepancy in the names of the lands as given by P. W. 1 and the names of the lands as given in the usufructuary mortgage of 1908. There is undoubtedly some discrepancy in respect of some plots. But both the parties knew very well that dispute was in respect of the aforesaid six plots and the crops raised thereon and that those plots were included in the usufructuary mortgage. Therefore I am satisfied that the petitioner has been in no way prejudiced by the fact that though the original proceeding under Section 145, Cr. P. C., was initiated in respect of the whole of village Rachavikrampur, evidence was led in respect of possession over the aforesaid six plots of land in the village and the final order of the Magistrate also related only to the said six plots of land. There can be no illegality if the final ordsr relates only to a portion of the lands included in the preliminary order under Section 145, Cr P. C. This is based on the well-known maxim 'omne majus in continet in se minus' (the greater includes the less). Doubtless if the final order had related to more lands than were included in the preliminary order, questions of illegality and want of jurisdiction may arise. But where, as in this case, the final order relates only to a portion of the land included in the preliminary order there may be at best an irregularity which in the absence of prejudice will not justify interference with the decision of the Magistrate.
7. Mr. Rao then contended that the Magistrate acted without jurisdiction in attaching the crops that had been already cut from the aforesaid plots and stored on two threshing-floors and making them also the subject-matter of the proceeding under Section 145, Cr. P. C. He urged that if the crops had been standing on the disputed plots on the date of the initiation of the proceeding under Section 145, Cr. P. C., the Magistrate may be justified in attaching the same and making interim arrangements for getting them harvested and stored pending the decision in the proceeding. But where, as in this case, the crops had been cut long before the commencement of the proceeding under Section 145, Cr. P. C., and had been stored on two threshing-floors which were not situated in any of the six plots in dispute, the attachment of such crops in the present proceeding would be without jurisdiction. He further urged that after passing the final order under Section 145, Cr. P. C. the learned Magistrate directed that the cut crops should be released in favour of the first party and that this order was also without jurisdiction inasmuch as such an order would not come within the scope of Sub-section (8) of Section 145, Cr. P. C. It is now well settled that the expression 'crops or other produce' in Sub-section (2) of Section 145, Cr. P. C. relates to standing crops on the land and not to crops which have been severed from the land and stored on a threshing-floor. (See -- 'Ramzan Ali v. Janardhan Singh', 30 Cal 110; -- Rajindra Lall v. Brich Kurmi', AIR 1938 Pat, 527 and -- 'Gaya Prasad v. Emperor, AIR 1948 All. 94). In --'Sundar Mall v. Jhari Lal', 2 Pat L J 637, it was pointed out that the Magistrate can deal under Section 145, Cr. P. C., with crops attached to, or if the same are cut and lying on the land but when not removed from it. In a very recent Patna decision reported in -- 'Deonan-dan Singh v. Thakur Singh', AIR 1949 Pat 58 the previous decisions on the subject were fully reviewed and, with respect, I would agree with the reasons given in that judgment. Mr. Rao is, therefore, right in his contention that the learned Magistrate had no jurisdiction to initiate or to continue the proceeding under Section 145, Cr. P. C., in respect of seven heaps of paddy crops that had been cut and removed from the lands in dispute long before the commencement of the proceeding and that were lying on two threshing-floors. But this conclusion will not be fatal to the entire case. The preliminary order under Section 145, Cr. P. C., has made a sharp distinction between 'lands in dispute' on the one hand and 'produce in dispute' on the other. Proceedings may be bad in respect of the 'produce in dispute', for the reasons already stated. But this is clearly severable from the main proceeding which was in respect of the 'lands in dispute' and no prejudice was caused to either party by the action of the Magistrate. Consequently I would not hold that the entire proceeding is bad.
8. Mr. Rao is also right in his contention that no order under Sub-section (8) of Section 145, Cr. P. C., can be passed for the disposal of the cut paddy crops. Sub-section (8) must be read with Sub-section (2) of that section and the decisions cited above are sufficient to show that the crops referred to in both the sub-sections must be either crops standing on the land or crops that were, after harvest, kept on the land in dispute. But this question of law is purely academic in the present case. The Magistrate has not stated that he directed the delivery of the seized crops to the first party in exercise of the powers conferred on him by Sub-section (8) of Section 145, Cr. P. C. He has not quoted the appropriate section under which he acted and as rightly pointed out by the learned Sessions Judge his order may be justified under Section 517, Cr.P.C. It may be that his initial order attaching the crops was without jurisdiction. But Section 517, Cr. P. C., is wide enough to authorise the Magistrate to pass such order as he may think fit for the disposal of any property that may have come into his custody, whether by lawful or unlawful means. In a Nagpur case reported in -- 'Bhimji Ramji v. Emperor', AIR 1944 Nag 366 Bose J. (as he then was) observed:
'It was argued that the seizure was illegal and that, therefore, these powers (referring to Section 517, Cr. P. C.) did not exist. That, however, is immaterial. Once the property is there it does not matter how it reached the hands of the Court. The moment the enquiry or trial is at an end, the right to dispose of it under Section 517 at once arises..... The first attribute of jurisdiction is thatthe property be produced before the Court or be in its custody. Once that is fulfilled then the right to make the orders arises.'
It is true that this decision was in respect of an offence under the Defence of India Rules and the seizure of some property illegally in a case started for that offence. But the principle laid down therein is undoubtedly of wider application and would apply with equal force where a Magistrate after having illegally attached and brought into his custody moveable property in a proceeding under Section 145, Cr. P. C., passes an order for its disposal after the termination of the proceeding. There is also a recent decision of the Allahabad High Court in -- 'Sheo Mangal v. Maharaj Kuar', AIR 1949 All 285 in support of the view that an order under Section 517, Cr. P. C., can be passed in respect of moveable property illegally attached in a proceeding under Section 145, Cr. P. C. Therefore I find no illegality in the last order of the Magistrate directing release of the property in favour of the opposite party. As regards the propriety of that order I would content myself with pointing out that after having held the opposite party to be in possession of the disputed plots the Magistrate had no other option but to direct delivery of possession of the crops cut from those plots to that party.
9. The third contention of Mr. Rao is as follows:
The proceeding under Section 145, Cr. P. C., was started by the Magistrate on 30-3-1948 and the preliminary order was issued only on 10-4-48. It is admitted that on 24-1-1948 the bailiff of the Special Assistant Agent, Rayagada, had delivered possession of the paddy heaps to the petitioner. The petitioner was thus in possession of the paddy heaps for one day and it was only on 25-1-1948 that the police went to the spot and again attached the paddy heaps. Mr. Rao urged that the petitioner thus came into full and exclusive possession of the crops cut from the disputed lands on 24-1-48 and thus dispossessed the opposite party more than two months prior to the initiation of the proceeding. Consequently his possession should have been maintained and the opposite party could not rely on the first proviso to Sub-section (4) of Section 145, Cr. P. C.
10. In considering this argument certain admitted facts should be recapitulated. The dispute in this case is between two landlords and neither party actually cultivated the lands. The crops were raised all along by some Saura tenants and the possession of either party was limited to the realisation of the landlord's share of the produce every year. The petitioner clearly admitted in his deposition that till the year 1947 the opposite party were in possession of the landlord's interest in the disputed lands by virtue of the usufructuary mortgage of 1908. He, however, stated that with the passing of the Orissa Money-lenders (Amendment) Act, 1947, and its extension to Koraput district, the usufructuary mortgage was automatically discharged and thereupon the mortgagees themselves peacefully surrendered possession to him. This witness was obviously referring to the Orissa Money-lenders (Amendment) Act, 1947 (Act 18 of 1947) which amended Section 17, Orissa Money-lenders Act, 1939, and made that section applicable to usufructuary mortgages executed before the commencement of that Act. It is unnecessary in this case to consider the question as to how far Section 17, Orissa Money-lenders Act, 1939, as amended by the amending Act of 1947 would help the petitioner especially in view of the sale of the equity of redemption in the final mortgage decree of O. S. No. 2 of 1924. There is, however, a clear admission that till 1-8-1947, the possession over the disputed lands remained with the opposite party. As the cultivating season generally commences before the 1st August it seems clear that when the tenants raised the paddy crops in the cultivating season of 1948-49 they did so as tenants of the opposite party. The attachment of the crops by the Maharaja of Jeypore in E. P. No. 4 of 1946 took place on 26-11-47 and the crops were released on 24-1-48. They were again attached by the police on 25-1-48. As to what happened at the time of release of the crops on 24-1-48 there is the evidence of the bailiff of the Special Assistant Agent Jagannadhan. He released all the attached paddy crops that were stored on the threshing-floors and delivered them to the second party. He did not go upon the disputed lands at all. The petitioner admitted that as soon as the attached crops were thus delivered to him one of the tenants began to thrash the paddy when on the very next day (25-1-48) the police came and again seized the crops. He did not thus realise any part of the landlord's share of the crops on the 24th. His statement that the mortgagees peacefully gave up possession to him has been disbelieved by the trial Court, he admitted that the mortgagees did not give him any delivery receipt to show that they surrendered possession nor did he issue notice to the tenants to attorn to him and to give him the landlord's share of the produce rent. No 'kadapa' or 'cowle' showing fresh settlement of the lands was produced. A question, therefore, arises whether on these materials it can be held that he dispossessed the opposite, party on 24-1-43.
11. The nature of possession in a proceeding under Section 145, Cr. P. C., where the dispute is between two rival landlords has been the subject of several decisions. As early as 1872 in -- 'Sutherland v. Growdy', 18 W R (Cr) 11 it was pointed out that if an occupier of land is paying rent that is possession of the landlord to whom he pays rent. This was followed in-- 'Sarbananda v. Pran Sankar', 15 Cal 527 where it was pointed out that even if the tenants had attorned to the new landlord but no payment of rent had been made to him the previous landlord's right to have recourse to Section 145, Cr. P. C., so as to have his possession of the right to collect rent maintained still existed. In a recent decision of this Court reported in -- 'Indramoni Devi v. Raghunath Bhanja', ILR (1949) 1 Cut 635 this question was discussed at some length and it wag pointed out that the act of possession of a landlord of tenanted lands is exercised by receiving his share of the produce.
12. The present case is weaker for the petitioner than the case reported in '15 Cal 527'. Here the finding is that the tenant had not attorned, in his favour. The only tenant who deposed on his behalf (Saura Singh) admitted that formerly he was paying produce rent to the opposite party and that it was only on the date of attachment that he came to know that the land belonged to the petitioner. No produce rent of any of the plots was paid to the petitioner either on 24-1-48 or on any subsequent date. The crops that were kept on the threshing-floors had not yet been thrashed by that time. When the thrashing operations just commenced on the 24th the police came to the scene on the 25th and again attached the crops. Under these circumstances the general presumption that there is continuity of possession and that as between rival landlords the possession of tenant is that of his landlord (See -- 'Venugopal v. Neelakanta', AIR 1945 Mad 255) would apply in favour of the opposite-party and they must be held to have remained in possession all along. The isolated act of the petitioner in taking notional possession of the cut crops on the 24th before the crops had been actually thrashed and his share ascertained would not amount to 'dispossession' as required for the purpose of Section 145, Cr. P. C.
13. I would, therefore, affirm the judgment of the Magistrate and dismiss the revision petition.