Divvela Visweswara Rao vs Rayapudi Satyanarayana

The judgment and decree of the learned Subordinate Judge, Vijayawada in OS No.25S/78, dated 26-12-1983 is assailed by the defendant in the suit who is the appellant herein, the respondent being the plaintiff. The suit was filed for recovery of Rs.21,201-39 with costs, interest etc. The suit is based upon a pronote dated 31-8-1975 executed by the defendant agreeing to repay the amount on demand with interest at 18% per annum. Rs.200/- were paid on 4-9-1977 regarding which an endorsement was made on the pronote. Since the balance was not paid inspite of repeated demands, the plaintiff had to file the suit. Ex.A1 is the suit pronote. While admitting that he has executed the suit pronote and paid Rs.200/- on 4-9-1977, towards part payment, as per endorsement, Ex.A2, he contended that no cash consideration passed at the time of the suit pronote as there was already a transaction between them wherein he had made several payments like Rs.1000/-on 22-7-1970, Rs.1000/- on 3-9-1971, Rs.1000/-on 6-4-1972, Rs.400/-on 3-7-1972, Rs.1000/- on 21-5-1973, Rs.1000/-on 10-2-1975 and Rs.500/- on 16-5-1975 and he wanted these payments to be endorsed on the back of the pronote. He also contended that he is an agriculturist and entitled to the benefit of the Andhra Pradesh (Andhra Area) Agriculturists Relief Act, 1938 (Act No.IV of 1938 for short ''the Act'') whereby the interest cannot be as claimed by the plaintiff. During the trial both oral and documentary evidence was adduced on both sides wherein the plaintiff examined himself as PW1 and defendant examined himself as DW1. Ex.A1 to A27 were marked for plaintiff and Exs.B1 to B4 were marked for the defendant. With these materials and after hearing both sides, the learned Subordinate Judge did not believe the part payments alleged by the defendant, held that the suit pronote is supported by consideration and further held that defendant is not entitled to the benefit of the Act and held that the rate claimed by the plaintiff is not usurious, but awarded interest in the manner mentioned in the decree. However, the decree provided for deduction of Rs.3000/- paid by the defendant on 13-9-1978 during the pendency of the suit. Aggrieved by the judgment and decree as above, the defendant by raising several contentions in the memorandum of appeal supplemented by the learned senior advocate Sri T. Veerabhadrayya has pursued this appeal.

The learned Subordinate Judge has given ample reasons supported by the materials in rejecting the plea of the defendant about the suit pronote having no consideration and having come out under the circumstances pleaded by him. Even assuming that no consideration passed under the suit pronote and the defendant executed it for a consideration which he had borrowed from the plaintiff''s father, that would be still good consideration and good discharge as against the existing consideration. Secondly, the learned Subordinate Judge has assessed both oral and documentary evidence in this regard correctly and has come to the correct conclusion and this Court in a first appeal like this, should not disturb such finding which is supported by reasons and materials.

Regarding certain payments, said to have been made on different dates, the learned Subordinate Judge has rightly disbelieved for want of materials and want of any endorsement anywhere. Even assuming that there were such payments, it is for the defendant to prove it either by examining the plaintiff''s father or by producing independent evidence. Even regarding this finding, there is no reason to interfere with it.

Mr. Veerabhadrayya, learned senior Advocate has fairly represented and even from the grounds of appeal he has pointed that his party is more aggrieved by the finding of the learned Subordinate Judge that he is not an ''Agriculturist'' inspite of clear evidence on record and the law operating upon the same under the provisions of the Act. Mr. Mohammad Ansaruddin, learned advocate for the respondent with all his efforts tried to demonstrate to the contrary by pointing out that in case where the burden was on the defendant to establish that he is entitled to the enactment, when he failed to do it, the learned Subordinate Judge was right in holding against him.

When a litigant to a suit takes a plea for the defence or otherwise of an Act, in the first place, the burden is on him that he is entitled to the benefit and secondly such Act or law has to be decided as to what is the parametres of such a defence and benefit has to be extended to such a person. Thus, the law being the Act, under the provisions thereunder with amendments, it has to be decided both on fact and law that whether the defendant is entitled to the benefit of such an enactment. Agriculturist is defined in the Act u/s 3(ii) of the Act which reads as follows:

" ''Agriculturist'' means a person who--

(a) has a saleable interest in any agricultural or horticultural land in the Andhra area of the State of Andhra Pradesh, not being land situated within a municipality or cantonment, which is assessed by the State Government to land revenue which shall be deemed to include peshkash and quit-rent, or which is held free of tax under a grant made, confirmed or recognised by Government; or

holds an interest in such land under a landholder under the Andhra Pradesh (Andhra Area) Estates Land Act, 1908, as tenant, ryot or under-tenure holder.

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Intentionally and impliedly the provision makes it mandatory that person pleading that he is ''agriculturist'' should show that he has saleable interest in any agricultural or horticultural land to mean that fundamentally he must have title or must possess the land continuing the saleable interest meaning thereby that he holds the right and title as on the date of the suit and on the dates he claimed such a relief meaning thereby that it is alienable. That is how the rulings referred by the learned Subordinate Judge in the judgment both of this Court and the Madras High Court were guiding force to determine such a question. But the implication of enactment should not be misled to oneself to think that the burden of proof in such a situation is not such as to always show that the land remains intact with a particular person. That depends upon the facts and circumstances of each case. To clarify in such a case, the initial burden of proof that a persons an agriculturist is on the person who pleads it and to plead it first and then to prove that he holds land and he has saleable interest in that. The saleable interest within the contemplation thereunder, has meaning in the provisions of the Transfer of Property Act like Section 54, to give an illustration, if that title like sale etc. defined u/s 54 itself is defective for want of registration etc., possibly that may have a defective title for the purpose of alienation. The best example will be a title said to have been transferred without a registered document where the immovable property exceeds value of Rs.100/-. This is mentioned only as an illustration and not an exhaustive or conclusive expression on the subject. Therefore, such a saleable interest may be plenty or empty depending upon the facts and circumstances of each case. In the present case, the learned advocate for the appellant has taken this Court through depositions of both the parties in addition to the documentary evidence on the case. Even the judgment, has referred to such materials. Even the plaintiff''s own admission concedes that the defendant owns Ac. 16-00 of land whereas the defendant has come out with a concession to the extent of Ac. 11-50 cents in his oral testimony supported by Ex.B1 Chitta of Panuganchiprolu village for Fasli 1386 and Exs.B2 to B4 Cist receipts, that 13 where he discharged the initial burden that he owns the land possesses the land. In fact, the Evidence Act itself declares in Section 58 that facts admitted need not be proved. The fundamental admission of the plaintiff himself is that the defendant owned some agricultural land, whether it is one acre or any number of acres which was reinforced by the defendant''s evidence positively that he did own or possess atleast Ac.11-50 cents of land. Whether he had saleable interest or not seriously disputed by the plaintiff. In the considered opinion of this Court, the law and the Court should presume fundamentally that any right or title remains intact unless disturbed in fact or in law. Mr. Veera Bhadrayya, learned Senior Advocate has rightly depended upon a pronouncement of the Supreme Court in Ambica Prasad Thakur v. Rain Ekbal Rai AIR 1966 SC 605 in support of his contention that as per illustration (d) of Section 114 of the Evidence Act there is a presumption of continuous backward and forward. The universal truth concedes the existence of a fact unless disturbed. It is not only legal but also scientific. The static or the dynamic property of act continues, The law of inertia is the rule and the motion is the exception. When there is a clear admission that the defendant owns a land, it must be presumed that it continued with him. The saleable interest being presumptory, legal intent and the content, cannot be unrested with surmises or speculations. The learned Subordinate Judge has gone too far in disturbing such a universal truth. This Court is unable to support him. The plaintiff did not raise even little finger to show that the property or agricultural land which was with the defendant has been disturbed either voluntarily or by operation of law. In that view of the matter both on presumption and true principles of law, the agricultural land with the defendant continued with him with saleable interest as on the date of suit and on the date of the decree and the facts of the case totally fit into Section 3(ii(a) of the Act and there was no escape for the learned Subordinate Judge to give a finding that the defendant is an ''Agriculturist''. Such a finding against the evidence and the law cannot commend acceptance and requires to be disturbed.

Mr. Veerabhadrcyya, learned Senior Advocate has relied upon Section 13 of the Act to seek the relief under the Act to the defendant-appellant that the rate of interest payable by him as an ''Agriculturist'' shall not exceed a sum calculated at 6 1/4 percent per annum, that too simple interest, provided that the State Government may, by notification in the Official Gazette, alter and fix any other rate of interest from time to time. Nobody has pleaded that such a stipulation has been altered by the State Government in regard to the provision nor the small investigation so far made on the question reveal that such a rate of interest has been altered. Actually Mr. Veerabhadrayya, learned senior Advocate has calculated interest at 12% from a particular date in the memorandum of appeal. That will also not fit into Section 13. In fact, Section 13(A) of the Act operates and which reads as follows :

"Rate of Interest payable by certain persons on debts :--Where a debt is incurred by a person who would be an agriculturist as defined in Section 3(ii) but for the operation of proviso (b) or proviso (c) to that section, the rate of interest applicable to the debt shall be the rule applicable to it under the law, custom, contract or decree of Court under which the debt arise or the rate applicable to an agriculturist u/s 13; whichever rate is less"

It is nobody''s case that by virtue of the Custom, Contract or decree etc., the rate of interest is something different than what the parties are pleading or proving and even such a rate is existed, it cannot be more than what is mentioned in Section 13 of the Act to mean thereby that it cannot be more than 6 1/2 per cent per annum. Possibly even the amendment Acts up to date from time to time do not show that there is any alteration in this regard which should be confinned ultimately by the Court while granting relief. Therefore, in this case, the plaintiff is entitled to recovery of interest on the debt under the pronote only at the rate of 6 1/4th per cent per annum from the date of the pronote till the date of the suit and at the rate of 6 1/2 per cent per annum on the entire amount due till the date of payment of Rs.3000/- and on the balance after deducting Rs.3000/-, at the rate of 6% per annum till the date of realisation. Regarding the question of costs, there must be only proportionate costs under the circumstances.

The appeal is partly allowed. The Judgment and Decree of the learned Subordinate Judge is confirmed but modified to the effect that the plaintiff shall be entitled to recover the suit claim of Rs. 13,000/- from the defendant with interest at 6 l/4th per cent per annum from the date of the pronote till the date of the suit in the first instance and at the rate of 6 1/2% per annum from the date of the suit till the payment of Rs.3000/- on 13-9-1978 and on the remaining balance at the rate of 6% per annum till the date of realisation. The defendant shall also pay costs to the plaintiff through out, however, with proportionate costs. In this appeal, the parties shall bear their own costs.