G.K. Anjaneya Gupta vs Puttappa

A. Hanumanth, J.—This revision is preferred by Decree-Holder against the order dated 17-9-1991 passed by the learned District Munsiff, Hindupur in Anantapur District dismissing the E.P. No. 111/86 in O.S. No. 146/84 on the ground that Judgment-Debtor is entitled to the benefits of A.P. Act 45/87.

The revision-petitioner G.K. Anjaneya Gupta obtained a money decree in O.S. No. 146/84 on the file of the District Munsiff, Hindupur against the respondent herein. In execution of that decree, he filed E.P. No. 111/86 for attachment and sale of the immovable properties of the judgment-debtor. The judgment-debtor filed a counter contending, inter alia, that he is a ''small farmer.'' under the provisions of Act 45/87, that he is entitled for the. benefits under the said Act and the decree-debt should be deemed to have been discharged. He also pleaded that he owns and cultivates an extent of 0.83 cents of wet land and 0.71 cents of dry land and that he has got 5 sons and one daughter. During the course of enquiry, the decree-holder got himself examined as P.W.1 and marked Exs.A-1 to A-3. On behalf of the judgment-debtor, R.Ws.1 and 2 were examined and no documents were marked. The decree-holder examined as P.W.1 deposed that in the partition effected with his brothers in the year 1980, he got an extent of Acs.2.19 cents of wet land and Acs.0.93 cents of dry land to his share and that he has got four daughters and that his daughters are also entitled for shares and as such, he is also a small farmer under the provisions of the Act 45/87. P.W.1 also deposed that he installed a flour mill in the year 1986 and he is running the same and that he is getting Rs. 30 to Rs. 40/- per day as income. The judgment-debtor examined as R.W.1 deposed that he is having one acre of wet land and 5 acres of dry land and that he got five sons and one daughter and all of them have got shares in it and on division each of them would get 0.75 cents of dry land and 0.15 cents of dry(sic. wet) land and that he has no other source of income. Ex.A-1 is the partition deed. Ex.A-2 is the flour mill plan and Ex.A-3 is the flour mill running licence. On a consideration of the oral and documentary evidence placed before him, including the evidence of R.W.2, the learned District Munsiff held that the judgment-debtor is a ''small farmer'' and that the decree-holder/creditor is not a ''small farmer'' as defined under the Act and therefore, the judgment-debtor is entitled for the benefit under the Act and the decree-debt is deemed to have-been discharged and consequently, dismissed the execution petition. Aggrieved of that order, the decree-holder has come up with this revision petition.

The learned Counsel for the revision-petitioner submits that the decree-holder is also a ''small farmer'' and as such, he is entitled to proceed with the execution of the decree and that the lower Court erroneously held that the decree-holder is not a ''small farmer''. The learned Counsel for the respondent-judgment-debtor submits in support of the impugned order.

A.P. Act 7 of 77 (Agricultural Indebtedness (Relief) Act) was enacted to provide relief from indebtedness to agricultural labourers, rural artisans and small farmers in the State of A.P. This Act 7 of 77 covers the debts which were in existence on the date on which the Act came into force, i.e., 29-12-1976. To cover subsequent debts, which were incurred subsequent to 29-12-1976, A.P. Act 45 of 87 was enacted extending the provisions of Act 7/77 to all debts incurred between 29-12-1976 and the date of commencement of Act 45/87 i.e., 1-1-1988. All the definitions contained in Act 7/77 are made applicable to the debts covered under A.P. Act 45/87. Section 3 of the Act relates to the definitions. ''Debtor'' has been defined in Section 3(j) as an agricultural labourer, a rural artisan or a small farmer, who has borrowed or incurred any debt before the commencement of the Act. Section 3(i) defines the ''debt'' as any liability owing to a creditor in cash or in kind whether secured or unsecured payable under a decree or order of the civil Court or otherwise and subsisting at the commencement of the Act. However, it is provided u/s 3(i)(xii) that debt does not include any debt contracted by a debtor from a person who is an agricultural labourer, a rural artisan or a small farmer. From this provision, it follows that even if a debtor as a ''small farmer'', an agricultural labourer or a rural artisan is entitled for the benefits of the Act, those benefits will not be available to him if the creditor is also an agricultural labourer, a rural artisan or a small farmer. Relying on this provision, the learned Counsel for the revision-petitioner submits that the decree-holder is also a ''small farmer'' and as such, the judgment-debtor is not entitled for the benefit under the Act even if he is held to be a ''small farmer''. He has not disputed seriously the finding of the lower Court that the respondent-judgment-debtor comes within the definition of ''small farmer'' under the provisions of the Act. Section 3(t) of Act 7/77 contained the definition of ''small farmer''. On an analysis of definition of ''small farmer'', contained in Section 3(t), the larger Bench of this Court in "P. Masthanaiah v. Ch. Veeraiah and Ors. 1987 (1) ALT 166 : 1987 (1) APLJ 203 held that for being a small farmer, a person must satisfy the following requirements:

(1) His principal means of livelihood should be income derived from agricultural land.

(2) He must hold and personally cultivate agricultural land not exceeding the extent specified, or he must have cultivated it as a tenant or a share-cropper or as a mortgagee, with possession (usufructory mortgagee) of agricultural fends not exceeding the limit specified.

(3) If he does not belong to any of the Scheduled Tribes, the land which he holds and cultivates, or cultivates as a tenant, or a share-cropper, or as a mortgagee with possession should not exceed one hectare if it is wet or two hectares if it is dry.

(4) If such a person is a member of Scheduled Tribe, the agricultural lands which he holds and personally cultivates or which he cultivated as a tenant or as a share-cropper or as a mortgagee with possession should not exceed two hectares if it is wet or four hectares if it is dry; and

(5) In either event, the annual house-hold income of such person other than from agriculture, should not exceed Rs. 1,200/- in any two years within three years immediately preceding to the commencement of the Act."

For the purpose of computation of holding of a debtor or creditor, Full Bench of our Court in Dasam China Pappayya Raju Vs. Sripada Ramachandra Prabhakara Rao, on a consideration of the definitions of ''small farmer'' and ''family'' in the Act, held that where an individual claims to be a ''small farmer'' as defined by Section 3(t) the land held and cultivated by him alone must be taken into consideration. If, on the other hand, it is a ''family'' which claims to be a small farmer, it is the aggregate of the land held and cultivated by that ''family'' that has to be taken into consideration. It is not permissible to aggregate the lands held by the members of the ''family'' when the individual alone is a debtor or a creditor. It is further held in that decision that "when a debt is owed by a joint family, it has to be split up into different units according to the expression "family" for the purpose of giving benefit under the Act. Otherwise, there was no purpose of defining the expression "family" in that manner". In other words, the Full Bench held that if a debt is an individual debt, the land which the debtor alone holds and personally cultivates should be taken into consideration and the lands belonging to the husband or the wife, as the case may be, and that of the minor children should not be taken into consideration; and if the debt is a joint family debt, it has to be split up into different units of family as defined in the Act and it has to be considered whether each unit is a small farmer or not and each unit of the joint family consisting of an individual husband or wife, as the case may be, of such individual and their unmarried minor children should be taken as judgment-debtors within the meaning of the Act in respect of each share of the debt owed by the family.

In the instant case, the jdugment-debtor deposed that he is having one acre of wet land and five acres of dry land and that he has got five sons and one daughter. P.W.1 has not disputed this fact and he has also not placed any material to show that the judgment-debtor has got more extent of land. R.W.2 also corroborates the testimony of R.W.1. The debt also is an individual debt of the judgment-debtor. The learned District Munsiff assessed the holding of the judgment-debtor as 0.75 cents wet (sic. dry) land and 0.15 cents of dry (sic. wet) land which comes to his share on notional partition with his sons and daughter. As the judgment-debtor has no other income from any other source, the District Munsiff held that the judgment-debtor is a small farmer as his holding is less than the prescribed under the Act. On the other hand, the decree-holder as P.W.1 also deposed that he possesses only Acs.2.19 cents of wet land and Acs.2.93 cents of dry land which he got under the partition with his brothers under Ex.A-1, and that he is having four unmarried daughters. This fact has not been disputed by the judgment-debtor, nor he placed any evidence on record that the decree-holder possesses more extent than the above. The learned District Munsiff assessed the holding of the decree-holder at less than the maximum extent after notional division with his four unmarried daughters. But, it is in the evidence of the decree-holder himself that he is getting an income of Rs. 30/- to Rs. 40/- per day from the flour mill which he installed in 1986. For coming under the definition of "small farmer" under the Act, the person should not only possess holding within the maximum extent prescribed under the Act, but his annual house-hold income from other than agriculture, should not exceed Rs. 1,200/- in any three (sic. two) years within three years immediately preceding the commencement of the Act. In the instant case, the decree-holder in his evidence has categorically stated that he is getting income of Rs. 30/- to Rs. 40/- per day from his flour mills which comes to more than Rs. 10,000/- per annum. Admittedly, he is getting that income from 1986 and as such, he was getting that income since 2 years prior to the commencement of the Act 45/87. The learned District Munsif rightly held that the decree-holder does not come within the definition of "small farmer" under the Act, and as the judgment-debtor is a ''small farmer'' under the Act, the decree-debt is deemed to have been discharged u/s 4 of the Act.

On a careful consideration of the evidence on record, it cannot be said that the impugned order is erroneous in law or perverse in finding. Thus, I hold that the E.P. No. 111/86 in O.S. No. 146/84 is not maintainable against the respondent-judgment-debtor.

In the result, I do not find any merits in this revision. The revision petition is dismissed. No costs.