Jagmohan Singh and Others vs Emperor

Rowland, J.—The complainant Deoki Pande was auction-purchaser, at a rent execution sale, of a holding of Gokul Rai and others; he took delivery of possession on 16th July 1931.

There were bamboo clumps standing on the land. Some weeks later, the petitioners cut and removed all the bamboos, 236 in number. They have been, for this act, prosecuted and convicted u/s 379, I. P.C. It was contended for them in the trial that they were in possession of the land since several years; by virtue of purchase from the original raiyat; but this plea was not accepted. It is argued in revision that though in the findings of the Courts below possession of the lands has passed to the complainant, it does not follow that possession of the bamboos also passed.

Standing crops it is pointed out are included in the definition of "moveable property" in Section 2(13), Civil P. C; and standing timber, growing crops and grass are excluded from the definition of "immovable property" in Section 3, T. P. Act. In Section 3(25), General Clauses Act on the other hand "immovable property" has a wider definition which would include standing crop, etc. The sale and delivery of possession, it is argued, referred to immovable property; and therefore it is contended the right to the possession over moveable property on the land did not pass.

The decision in Dhobi Roy v. Mahadeo Singh AIR 1923 Pat. 355 followed cases such as Afatoolla Sirdar v. Dwarka Nath [1879] 4 Cal. 814 decided before the present definition of "moveable property" was inserted in the Civil Procednre Code, and it is open to argument that these decisions are no longer good law. The argument is ingenious, but cannot stand in face of Section 8, T. P. Act, where it is said;

Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents include where the property is land... all things attached to the earth.

The expression "attached to the earth" is defined in Section 3. The first of its meanings is "rooted in the earth as in the case of trees and shrubs." The Courts below were therefore right in the view that when complainant acquired the land, he acquired the bamboos too; and that possession over them passed to him with possession of the land. The rule is discharged and the the application dismissed.