Damu vs Basavaraj Appayya Hiremath

This is a revision by the decree-holder against the order dated 4-3-85 passed by the District Judge, Bijapur in M.A. 1/84 reversing the order dated 23-1-84 passed by the Civil Judge, Jamkhandi, in Misc. Case No. 10/83 dismissing the judgmentdebtor''s petition filed under O. 21, R. 90, C.P.C.

The decree-holder who is the revision petitioner in this case, filed a suit in S.C. 7/79 against the judgment-debtor (J-Dr) to recover Rs. 2,613/- and odd. The said suit was decreed. He sued out the execution in Ex. 6/81. He got attached 1/ 5 share of the J-Dr in the house bearing No. CTS 1392 of Jamkhandi. J-Dr has raised a contention that he is an agriculturist and his share in the house was not liable to be attached and sold. They were negatives JDr.''s revision was also dismissed. This Court, while disposing of the said revision, gave 8 weeks'' time to deposit the money. He did not deposit the money. Thereafter sale notice was issued to the J-Dr. Finally sale took place on 26-3-83 and the decree-holder himself with the permission of the Court bid the property himself for Rs. 2700/-. The said sale was confirmed on 31-1-1984.

The J-Dr. filed Misc. Case 10/83 under 0. 21, R. 90, C.P.C. on 23-4-83 for setting aside the sale on the ground that he was an agriculturist and that this was the only house in which he was residing and storing his agricultural implements and thus it was not liable to be attached and sold. He also contended that there were material irregularities in the conduct of sale.

The decree-holder resisted the petition.

The trial Court dismissed the petition filed under O. 2 1, R. 90, C. P. C.

The J-Dr approached the District Judge in Misc. Appeal No. 1/84. The District Judge set aside the order passed by the Civil Judge and held that the suit property was not liable to be attached and sold on the ground that the J-Dr was an agriculturist and cultivator within the meaning of S. 60, C.P.C. and thus the house was not liable to be attached and sold. Hence, the decree-holder has approached this Court with the revision.

Ex. P-2 is the record of rights relating to Sy. No. 103 which shows that it has been mortgaged to the land development bank by the J-Dr with possession and that one Satveerayya is cultivating it. The evidence of the J-Dr shows that he has also got one another garden land in Kumbarhalla. The certified copy of the deposition recorded in Misc. 10/83 has been produced before me. I would like to reproduce the entire examination-in-chief itself :

"The house proposed for sale is 145 sq. meters. There are 4 apartments on the ground floor and four on first floor. The suit house is in Metri galli. The house of one Manikchand bearing C.T.S. No. 480 which is about 30 yards from my house is sold for Rs. 48,000/-in 1983.The C.T. S. extract of the said house is at Ex. P1. The value of the suit house would be about Rs. 60,000/- or Rs. 65,000/-at present and also on the date of sale. The value proposed by the decree-holder for 1/5 share in the suit house at Rs. 2,000/- and odd would be much less. The proclamation was not proper and therefore many bidders did not come. The suit house is used for residential and as well as agri.purpose. I have no other house. I have produced the R of R at Ex. P-2 which shows that I am agriculturist."

It is no doubt true that it is got elicited in his cross-examination that he has got a garden land at Kumbarahalla, also. Section 60(l)(c) exempts houses and other buildings (with materials and sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him from attachment and sale in execution of a decree. Learned Author, Mulla in his C.P.C. Vol. 1, 14th Edition, 402 has said, the term "agriculturist" includes persons engaged in cultivating the soil for remuneration although they may have no interest in the soil either as proprietor or tenant. It means a small holder who tills the soil and cultivates it and not a large landed proprietor, even though his sole income is from land. The term means a person who personally engages himself in tilling the soil and whose livelihood depends upon the proceeds derived from that tillage of the soil. The true test is whether a man personally engages in tilling and whether this occupation is essential to his maintenance. In Balusu Prabhakara Pattabhi Ramarao Vs. Chintapalli Venkata Subbama, it was held that a person might be an agriculturist even though he cultivated the lands not personally but through labourers, if he maintained himself from the income there from. In Smt. Chandrawati Tewari and Others Vs. Uttar Pradesh Government, a Full Bench of the Allahabad High Court held on a review of the authorities that whether a person was an agriculturist depended not on whether the income from the lands was the main source of his livelihood but whether his main occupation was agriculture, i.e. tilling the lands or directing or supervising agricultural operations. A agriculturist does not cease to be one when he is unable to cultivate his land in a year of scarcity. The meaning, of the word ''agriculturist'' in this provision came up for consideration before the Supreme Court in Shrimant Appasaheb Tuljaram Desai and Others Vs. Bhalchandra Vithalrao Thube, and it was held that before a person could claim to be an agriculturist "he must at least show that he was really dependent for his living on tilling the soil and was unable to maintain himself otherwise. It was accordingly held that a person who had a substantial income from lands other than those cultivated by him as farm lands and also cash allowances was not an agriculturist and that a building constructed by him was not within the exemption." Therefore, in order to attract S. 60(l)(c), C.P.C. the J-Dr. must show that his only and main source of maintenance is from agriculture. It is for him to show that he was personally cultivating the land and he lives by the income derived from the lands. Even though he may not own lands, he must show that his main source of income is by working in the lands belonging to others. In the absence of any such evidence, it would not be proper to hold that the J-Dr. would be an agriculturist or a labourer or a domestic servant within the meaning of S. 60(l)(c), C.P.C. I have extracted the entire examination-in-chief of the J-Dr. Nowhere in his examination-in-chief he says that his main income is from agriculture or that he works as an agriculturist or a labourer or a domestic servant in the lands of others. In the absence of any such evidence, it would not be proper to hold that the J-Dr. is an agriculturist or a labourer within the meaning of S. 60(l)(c), C.P.C. Therefore, the lower appellate Court went at a tangent and appears to have not read the evidence at all in the case and appears to have superficially dealt with the matter. It started with the assumption that the J-Dr. is an agriculturist. When the lower appellate Court started with such a presumption the approach made by it is naturally jaundiced. As already indicated above, the J-Dr. has not produced any evidence to show that he has been cultivating the lands or he has been working as a labourer or a cooly in the lands. Therefore, the Court below erred in holding that the J-Dr. is an agriculturist within the meaning of S. 60(l)(c), C.P.C. So far as the material irregularities in the conduct of sale are concerned, both the Courts have held that there are no material irregularities.

Therefore, under these circumstances, the order passed by the lower appellate Court -is set aside and the revision is allowed and the order passed by the Civil Judge dismissing the Misc. case is restored and confirmed. No costs.

Revision allowed.