D.D. Seth, J. - (1.) THE reference has been made to this Court by the learned Temporary Sessions Judge, Mathura and arises out of proceedings Under Section 145, Code of Criminal Procedure. Against the same order by which the referring court has made the reference to this Court the Applicants Nanua and others have filed criminal revision No. 1057 of 1969 the reference and the revision have been ordered to be connected by a learned single Judge of this Court and hence they are being disposed of together. As regards the revision it may be stated that since the reference is in favour of Nanua and others the revision filed by them has become infructuous and is dismissed.
(2.) THE facts giving rise to the reference which has been made to this Court are that on 26 -4 -1968 Lachman filed a complaint before the learned Sub Divisional Magistrate, Sadar, district Mathura, alleging that he, along with Narain Singh, was in possession of the plots in dispute since 21 -12 -1966 as a result of an agreement to sell the plots to him and Narain Singh executed by Nanua for a sum of Rs. 10,000/ - out of which Rs. 7,000/ - were paid immediately to Nanua who had undertaken to execute the sale deed of the plots in dispute in favour of Lachman and Narain Singh within two years after acquiring Bhumidhari rights in the plots and further alleging that the possession of the plots was also simultaneously given to him and Narain Singh soon after the execution of the agreement to sell. It was further alleged by Lachman that subsequently Nanua, on 8 -4 -1968, dishonestly executed a sale deed in respect of the plots in dispute in favour of Kunwar Sen and Kamla after acquiring Bhumidhari rights in the plots. According to Lachman the possession of the plots had already been delivered to him and Narain Singh under the agreement to sell dated 21 -12 -1966. The subsequent sale deed by Narain in favour of Kunwar Sen and Kamla had no legal effect. Lachman further alleged that on the basis of the fictitious sale deed obtained by Kunwar Sen, Kamla and others from Nanua they had started asserting their possession over the plots in dispute and wanted to forcibly cut away the crops growing on the plots and therefore, there was an apprehension of breach of peace between the parties. It was prayed that proceedings Under Section 145, Code of Criminal Procedure, be instituted against Nanua and others. The learned Magistrate Sadabad, after getting Lachman's complaint, asked the Station Officer Baldeo to make an inquiry and to submit a report. Accordingly the Station Officer submitted the report and the learned Magistrate, on 4 -5 -1968, passed a preliminary order Under Section 145, Code of Criminal Procedure, requiring both the parties to appear in his Court and to file their written statements, documentary evidence and to produce oral evidence in the shape of affidavits in support of their cases and also ordered the attachment of the plots along with the crops. It may be stated at this stage that on an application by Nanua on 25 -5 -1968 the learned Magistrate ordered that 'cut crop' could not be subject of proceedings Under Section 145, Code of Criminal Procedure. But by a subsequent order dated 9 -7 -1968 the learned Magistrate revised his earlier order of 25 -5 -1968 and held that the attachment of cut crop which pertained to the plots in dispute was not bad in law. 4. As a result of the notice issued to the parties they appeared before the learned Magistrate and Lachman and Narain filed a joint written statement stating therein that the plots in dispute had fallen to Nanua's share in suit No. 21 -81 dated 8 -11 -1966 and that Nanua, on 21 -12 -1967, had executed an agreement to sell the plots in their favour for Rs. 10,000/ - out of which Rs. 7,000/ - had been paid forthwith to Nanua who had undertaken to execute a sale deed of the plots within two years after he had acquired Bhumidhari rights by depositing ten times of the rent but subsequently Nanua dishonestly sold the plots to Kunwar Sen and Kamla on 8 -4 -1968 even though he had delivered possession of the plots to Lachman and Narain. Kamla and Kunwar Sen also filed their written statements in which they stated that Nanua, on 8 -4 -1968, had executed a registered sale deed of the plots in dispute in their favour and that they were in possession of the plots and Lachman and Narain had no concern with them. Nanua also filed his written statement supporting the case of Kamla and Kunwar Sen and denied that he had executed any agreement to sell the plots in favour of Lachman and Narain. 5. On behalf of Lachman and Narain affidavits of Narain, Dani Ram, Mohan Lal, Mani Ram, Ramji Lal, Lachman, Chandan Singh, another Lachman, Genda Lal and Chob Singh and some others were filed in support of their case. Lachman and Narain also filed the copy of the agreement to sell dated 21 -12 -1967 and some other documentary evidence. On behalf of Kamla, Kunwar Sen and Smt. Ram Dulari affidavits of Deoki, Radha Raman, Brishbhan, Girraj, Suraj Bhan, Mani Ram and a few others were filed. They also filed copy of khasra 1368F., copies of extracts of Khatauni from 1373 to 1375F., copy of the sale deed dated 8 -4 -1968, abpashi parcha for 1375F. and some rent receipts. 6. The learned Sub Divisional Magistrate, after considering the evidence produced by the parties, held that Lachman and Narain had been in cultivatory possession of the plots and the crops in dispute ever since the execution of the agreement to sell and 'they were also in de facto and exclusive possession on the date the preliminary order was drawn up.' By his order dated 7 -4 -1968 the learned Magistrate ordered the plots and the cut crops to be released in favour of Lachman and Narain and forbade Kamla, Nanua and Kunwar Sen to interfere with the possession of Lachman and Narain until they were evicted from the plots in dispute in due course of law. 7. Against the order of the learned Magistrate dated 7 -10 -1968 Nanua and others preferred a revision which was allowed by the learned Temporary Sessions Judge, Mathura, by his order dated 16 -4 -1969, by which he made reference to this Court recommending that the order passed by the learned Magistrate be quashed and the learned Magistrate be directed todecide the proceedings afresh and that the order passed in respect of the cut crop 'in any event be struck down'. 8. I have heard Sri Keshav Sahai and Sri P.G. Gautam in support of the reference. Sri G.N. Verma appearing on behalf of Lachman and Narain Singh and Sri D.S. Tewari learned Counsel for the State has opposed the reference. 9. Sri Keshav Sahai submitted that the cut crop could not be attached in proceedings Under Section 145, Code of Criminal Procedure. According to the learned Counsel as soon as the crops were cut they became moveable property which could not be the subject matter of proceedings Under Section 145, Code of Criminal Procedure which is contained in Ch. XII of the Code which deals with dispute as to immoveable properties. According to Sri Keshav Sahai Ch. XII of the Code is applicable only to immoveable properties as its heading shows and only those crops which are actually standing on a plot of land can be attached in proceedings Under Section 145, Code of Criminal Procedure and not crops which have been severed although they may still be lying on the land. Sri Keshav Sahai laid great stress on the heading of Ch. XII of the Code of Criminal Procedure and submitted that the heading had to be kept in mind while interpreting the provisions of Section 145, Code of Criminal Procedure. The referring court in this connection observed as follows: It is curious that the learned Magistrate not only gave his finding about the land but also about the cut crop which was not attached from the plots in dispute, but separately. It is also somewhat surprising that the learned Magistrate on 25 -3 -1968 passed an order on the application 7/A calling upon the S.O. to explain why the cut crop was attached and he himself held that the cut crop cannot be the subject of proceedings Under Section 145 of the Code of Criminal Procedure. This part of the order, therefore, is patently illegal on the own showing of the learned Magistrate. Consequently there is no difficulty in recommending to the Hon'ble High Court this that order about cut crop should be struck down. 10. The learned Temporary Sessions Judge obviously did not care to go through the record of the case and seems to have omitted to peruse the order passed by the learned Magistrate on 9 -7 -1968 to which reference has already been made above and by which the learned Magistrate had held that the cut crop, if it was attached to the immoveable property, could be legally attached in proceedings Under Section 145, Code of Criminal Procedure. 11. Before I deal with the submission made by Sri Keshav Sahai it is necessary to set out the provisions of Section 145, Code of Criminal Procedure, which are relevant. Section 145 of the Code deals with procedure where dispute concerning land etc. is likely to cause breach of peace and Sub -section (1) of that section reads as follows: Whenever a Distt. Magistrate, Sub -Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that 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, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. Sub -section (2) is also relevant and reads thus: For the purposes of this section the expression 'land or water' includes buildings, markets, fisheries, crops or other produce of land and the rents or profits of any such property. 12. In support of his contention Sri Keshav Sahai placed reliance on the decision of a learned Single Judge of the Patna High Court in Rajendra Lall v. Brich Kurmi AIR 1938 Patna 527 in which it was held as follows: 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 'immoveable property' to which alone the provisions of Section 145 are applicable. 13. But the facts of Rajendra Lall's case were that the paddy crops in that case were stored in a Khalihan standing on plots No. 1780 in village Parsauni and that plot No. 1780 was not included in proceedings Under Section 145, Code of Criminal Procedure. 14. Sri Keshav Sahai next placed reliance on the decision of a learned Single Judge of this Court in Chaurasi v. Rama Shanker, 28 ILR All 266 in which it was held by Mr. Justice Richards as follows: Held that the words 'crops or other produce of land' as used in Section 145(2) of the Code of Criminal Procedure do not include crops which have been severed from the land upon which they grew. A Magistrate has therefore no jurisdiction to attach Under Section 146 of the Code a crop of mahua no longer growing on the trees. 15. In Chaurasi's case the dispute related to Mahua crop which on the date of the order of the Magistrate had been collected, saved and also removed from the place where it grew. Thus the fact of Chaurasi's case are also different from the facts of the instant case in which the crops, though severed from the land, were still stored on the plots when they were ordered to be attached by the learned Magistrate. 16. The next case relied upon by Sri Keshav Sahai is reported in Sita Das v. Jaisri Das : AIR 1927 All 99 in which Banerji, J. held as follows: Standing crops are immoveable property within the meaning of Clause (2) of Section 145. But crops that have been severed from the land are not immoveable property at all and therefore a dispute relating to the crops which have had been already cut and stored before issue of notice Under Section 145 is not covered by Section 145. 17. The facts of Sita Das's case show that the dispute in that case related to possession of a plot No. 116, situated in village Bilaspur and the crops standing thereon. On the date of dispute the crop had already been cut and stored in the khalihan where it had been mixed with crops from other fields and it was under those circumstances that this Court held that the learned Magistrate could not proceed Under Section 145, Code of Criminal Procedure, to attach portion of the crop lying in the khalihan. Thus the facts of Sita Das's case are also different from the facts of the instant case. 18. Sri Keshav Sahai then placed reliance on Ramzan Ali v. Janardan Singh, ILR 30 Cal 110 in which a Division Bench of the Calcutta High Court held as follows: The words 'crops or other produce of land in Sub -section (2) of Section 145 of the Code of Criminal Procedure mean crops or other produce of land attached to the land. A Magistrate therefore has no jurisdiction Under Section 146 of the Code to attach crops, which have been severed from the land and stored. 19. In Ramzan Ali's case also crop had been cut and removed to the threshingfloor and thus the facts of that case were also different to the facts of the instant case. 20. Sri Keshav Sahai also placed reliance on a decision of a learned Single Judge of this Court in Narsingh v. Suraj Kishore Devi : AIR 1951 All 826 in which Misra, J. held as follows: If moveable property is included within immoveable property, the attachment of the latter kind of property under the provisions of Section 145 would not render the incidental attachment of moveable invalid or bad in law for, it would, prima facie, belong to the person in possession of the immoveable properties. 21. Sri Keshav Sahai submitted that in Narsingh's case an offence had been committed and proceedings Under Sections 107, 145 and 154, Code of Criminal Procedure were taken and thus the observations of Misra, J. cannot apply to the facts of the instant case but I do not find any substance in this submission as I respectfully agree with the principle laid down by Misra, J. in that case. Crops cut and severed from the land are, by their very nature, moveable property to which the provisions of Section 145, Code of Criminal Procedure, cannot apply but crops cut and stored on the land which has been ordered to be attached still remain attached to the land and thus can form the subject matter of proceedings Under Section 145, Code of Criminal Procedure. Section 145, Code of Criminal Procedure, can, therefore, be invoked in respect of crops cut and gathered on the land, if there is a dispute relating to such crop. In the instant case the cut crop which was ordered to be attached by the Magistrate was unmistakably associated with the crop grown on the plots in dispute and thus could clearly be the subject matter of proceedings Under Section 145, Code of Criminal Procedure. I am supported in my view by a decision of Malik, J. in Gaya Prasad v. Emperor : AIR 1948 All. 94 in which that eminent judge held as follows: 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. Where in a dispute relating to rights in certain trees growing on joint land the complainant party claims a share in the tees standing thereon but the accused party claims to have been given the right to cut the trees by certain persons who claim to be exclusive owners of the trees the dispute mainly relates to land and the Magistrate had jurisdiction to attach the trees which have been cut but which are sill lying at the place where they were standing. 22. Sri Keshav Sahai submitted that Malik, J. had wrongly decided Gaya Prasad's case and tried to distinguish that case on the ground that the learned Judge has used 'trees' in his order but what matters is the principle laid down by the learned Judge with which I am in entire agreement. 23. In Sunder Mall v. Jhari Lal, AIR 1917 Pat 183 a Division Bench of the Patna High Court observed as follows: Sub -section 2, Section 145, Code of Criminal Procedure, must be read in conjunction with Sub -section 1 which deals with land and water; and Sub -section 2 purports to give a definition of what land and water are supposed to comprise. A Magistrate Under Section 145, Code of Criminal Procedure, has 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 Under Section 146, Sub -section 2. 24. It must, therefore, be held that the order passed by the learned Magistrate on 9 -7 -1968 ordering the attachment of the cut crop lying on the plot in dispute was a correct and lawful order and was an order in accordance with law. 25. The second ground on which the learned Sessions Judge has referred the matter to this Court is that the learned Magistrate placed reliance on the deed of agreement to sell dated 21 -12 -1966, a certified copy of which only was filed (paper No. 22/3 -A) before the learned Magistrate. According to the referring court the record disclosed that the original of that agreement to sell was never produced before the learned Magistrate and only a certified copy thereof was filed. Sri Keshav Sahai also challenged that part of the order of the learned Magistrate where he dealt with the agreement to sell by Nanua and in favour of Lachman and Narain Singh and submitted that since the original of that agreement had not been produced before the learned Magistrate great prejudice has been caused to the Applicants to the reference. There is no force in this submission also. The original agreement to sell was on the record of some proceedings Under Section 107, Code of Criminal Procedure and Lachman had filed an application on 30 -10 -1968 before the learned Magistrate Sadabad, praying that the files of the proceedings Under Section 107/117, Code of Criminal Procedure, may be perused and may be produced before witnesses during cross -examination. That application is paper No. 46 -A on record and that application was allowed by the learned Magistrate who permitted the record of the proceedings Under Sections 107/117, Code of Criminal Procedure, to be summoned in his Court and it was actually summoned and Nanua, when he was being cross -examined, was confronted with the original agreement to sell which was actually read over to him, as is clear from his testimony and from the final order passed by the learned Magistrate on 7 -10 -1968 (paper No. 49/3 -A). It, therefore, cannot be said that any prejudice had been caused to Nanua because the original agreement to sell had not been produced before the learned Magistrate. It was open to Nanua to file an application before the learned Magistrate to take his sample thumb impression and then to get it compared with the thumb impression on the original agreement to sell and the same could have been sent to the hand writing or thumb impression expert and his opinion could be obtained about the genuineness of the thumb impression of Nanua on the original but Nanua did not raise any such objection and did not file any such application and hence it cannot be said that prejudice had been caused to him. 26. It follows, therefore, that the findings of fact recorded by the learned Magistrate that the plots in dispute and the cut crops were in possession of Lachman and Narain was a correct finding and was based on the material and evidence on record and it seems to me that the referring court again omitted to notice that the original of the agreement to sell was actually produced before the learned Magistrate and Nanua was confronted with it while he was being examined and it is, therefore, not correct that only a certified copy of the agreement was filed by Lachman and Narain. The finding of the referring court that the learned Magistrate committed an error by not insisting on the filing of the original agreement and by permitting the copy of the original to take place of the original has caused great injustice to Nanua is not correct. On that ground also the reference has to be rejected. 27. For the reasons mentioned above and after hearing Sri Keshav Sahai and Sri P.C. Gautam in support of the reference and Sri G.N. Verma and Sri D.S. Tewari, who have opposed the reference, I reject this reference and uphold the order passed by the learned Magistrate on 7 -10 -1968 by which he ordered the release of the plots in dispute and the crop in favour of Lachman and Narain.;