Hari Singh and Others vs Natwar Lai and Others

D.C. Srivastava, J.—This is Defendant''s second appeal against the judgment and decree dated 25th April. 1986 of Sri N.S. Gupta 1st Additional District Judge, Mathura.

Brief facts essential for disposal of this appeal are as Under:

Deceased Defendant Nakta father of the present Appellants borrowed a sum of Rs. 5,000 from the Plaintiff-Respondents and executed mortgage deed in respect of five bhumidhari agricultural plots, having total area 3.93 acres, agreeing to pay interest at the rate of 6 per cent, per annum. Since nothing was paid towards principal and interest, a suit for recovery of money was filed on 18th Jury, 1976.

The suit was resisted by the deceased Defendant Nakta on several grounds. He admitted the execution of mortgage deed, but denied to have obtained loan of Rs. 5.000. On the other Hand he admitted that he borrowed Rs. 4,000 only. There was no dispute regarding agreed rate of Interest. He further pleaded that he had paid Rs. 5,000 towards loan but this amount was not adjusted by the Plaintiff - Respondents. According to Nakta, Rs. 500 only were due.

Nakta died during the pendency of the suit and his sons, the present Appellants were impleaded as his legal representatives.

Both the courts below upheld the execution of the mortgage deed and also passing of Rs. 5,000 as consideration. It was further held by the two courts below that nothing was paid by Nakta towards principal and interest. Certain pleas were not raised by Nakta in his written statement. During argument in the two courts below, few legal pleas were taken, namely, the suit was barred by U.P. Act No. 4 of 1977, namely, U.P. Debt Relief Act and also by the provisions of U.P. Money Lending Act. These pleas were also answered in negative by the two courts below against the Defendants. The suit was ultimately decreed by the trial court and the appeal was dismissed by the lower appellate court.

In this appeal several points were raised by the learned Counsel for the Appellants. The findings on question of fact recorded by the two courts below cannot be agitated in this second appeal. The legal points raised by the learned Counsel for the Appellants were those which were never pleaded in the written statement nor the written statement was got amended.

The first contention was that Nakta was a small farmer within the meaning of U.P. Debt Relief Act and since no issue'' was framed on this point, grave prejudice was caused to Nakta as well as to his legal representatives. According to the learned Counsel for the Appellants, the lower appellate court should have framed Issue on this point and should have remanded the suit for fresh trial. So that adequate and proper evidence could have been adduced. Since no issue was framed on the point it has vitiated the trial. It was, there fore, urged that in this second appeal, additional Issues may be framed and the case may be remanded for fresh trial.

Another contention has been that since Nakta died during the pendency of the suit and his four sons were impleaded as legal representatives and further because Nakta left behind a daughter, all the five persons became small farmers and in this view of the matter also the suit could not have been decreed.

I do not find force in the plea and argument that additional issue should be framed in this second appeal and the case should be remanded for fresh trial. Order 41, Rule 25 of the CPC provides as Under:

Where appellate court may frame issues and refer them for trial to court whose decree appealed from where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred, and in such case shall direct such court to take the additional evidence required and such court shall proceed to such issues, and shall return the evidence to the appellate court together with its findings thereon and the reasons thereof within such time as may be fixed by the appellate court or extended by it from time to time.

It is therefore, clear from this provision that where the court from whose decree the appeal is preferred has omitted to frame or try any issue or to determine any question of fact which appears to the appellate court essential for right decision of the suit, the appellate court may, If necessary, frame issues and refer the same for trial.

Issues are framed on a point which is alleged by one party and denied by other party. I have gone through the plaint as well as written statement. I do not find any plea in the written statement that the suit was barred by the provisions of U.P. Money Lending Act or that the deceased Nakta or the present Appellants were entitled to the benefit of U.P. Debt Relief Act. If no plea was taken on these points, the two courts below were not obliged to frame any Issue on these points. it may be mentioned that the suit was filed on 18th July, 1976. U. P. Debt Relief Act, whose benefit was strenuously claimed, came into force on 21st February, 1977. Record reveals that the written statement of Nakta was filed on 18th October. 1976. Thus it was filed when U.P. Act No. 4 of 1977 was not in force. However, after enforcement of this Act on 21st, February, 1977, the Defendants should have applied for amendment of the written statement in the trial court. That was not done. No such application for amendment was moved in the lower appellate court nor it was moved in this second appeal. Consequently, in the absence of specific pleadings on these points no issue should have been framed by the two courts below and their failure has not caused any prejudice to the Appellants nor any illegality was committed by them.

Issues should be framed on proper appreciation of pleadings. Issue can arise only on pleadings and not on casual argument advanced after completion of trial or In the course of hearing of appeal. Patna High Court in Siri Chand Prasad and Others Vs. Lakshmi Singh and Others, observed that when appellate court frames an Issue not arising out of pleading and remands the case, it commits an Illegality. On the strength of this pronouncement it can be said that if this Court is going to frame additional issue and remand the case, it would commit illegality, which is not permissible.

The casual arguments advanced in the courts below were adequately considered and properly replied in the two judgments. I have examined those findings and I do not propose to differ from those findings.

The plea that Nakta and after his death the present Appellants are entitled to the benefit of U.P. Debt Relief Act seems to have no Sub stance. Section 2(11) of the Debt Relief Act defines small farmer as Under:

Small farmer, means a person residing in a village who, on the date of commencement of this Act, holds unirrigated land exceeding one hectare but not exceeding two hectares and whose principal source of livelihood is income from agricultural land or by manual labour on such land includes a person cultivating land as an asami or as a share-cropper.

From the above definition it is clear that small farmer is a person who holds unirrigated land exceeding one hectare but not exceeding two hectares and whose principal source of livelihood is income from agricultural land or by manual labour on such land. Explanation III of Section 2(11) of the Act clarifies that Irrigated land and unirrigated land shall have the meaning assigned in U.P. Imposition of Celling on Land Holdings Act. Explanation II of the same Sub-section further recites that one hectare of irrigated land shall be equated to two hectares of unirrigated land.

It is, therefore, clear that one hectare irrigated land shall be equal to two hectares unirrigated land. A small farmer will be a person holding unirrigated land exceeding one hectare but not exceeding two hectares.

It was argued that for proper application of Explanation III, it was necessary to examine the extract of Khasras and other documents, for coming to a complete conclusion whether the land was irrigated or unirrigated and what was the area of land in possession of deceased Nakta.

In my view, a fact which is admitted either in the pleadings or in the statement by one party need not be proved. The plaint allegations show that Nakta mortgaged bhumidhari agricultural plots numbering five having total area of 3.73 acres. This fact was not denied, rather in the mortgage deed these plots having above area were specifically mentioned.

Nakta entered into witness-box as D.W. 1 and admitted in the end of cross-examination that he had 3.73 acres land and it was irrigated. There is finding of the two courts below that the land of Nakta was irrigated by minor of Irrigation Department. Consequently, for meeting the requirement of a land to be irrigated, it should be shown that the land has irrigation facility and is capable of yielding of two crops. There is admission of the deceased Nakta in the end of cross-examination that the total area of land was 3.73 acres and it was being irrigated. If irrigation facility from minor of Irrigation Department was available, it becomes immaterial that this facility was not utilised. Moreover, there is no evidence from tire side of the Appellants that irrigation facility was not utilised. On the other hand, if irrigation facility was utilised, it will be deemed that the land was capable of yielding two crops and as such it would be deemed to be irrigated land and no further investigation in the matter is needed.

Now the question is what the area of irrigated and unirrigated land is. As mentioned above. Nakta admitted that he held 3.73 acres irrigated land. Learned Counsel for the Appellants urged that 2.5 acres is equal to 1 hectare. In this view of the matter, Nakta had more Han one hectare irrigated land in his possession and cultivation. The trial court found that the land in possession of Nakta would be 7.46 acres unirrigated land which is obviously more than two hectares. This finding does not suffer from any infirmity or error of calculation. This finding was affirmed by the lower Appellate court as well. Consequently it has to be held that Nakta held unirrigated land exceeding one hectare as well as two hectares because five acres land would come to two hectares whereas 7.46 acres unirrigated land was in possession of Nakta. Nakta therefore, cannot be defined as small farmer. If this is so, then he was not entitled to the benefit of U.P. Debt Relief Act, 1977.

As a consequence of this finding, it follows that if Nakta, the principal debtor was not entitled to the benefit of U.P. Debt Relief Act. his legal heirs or legal representatives jointly or severally cannot claim or get benefit of the provisions of this Act.

It was next argued that u/s 10, Chapter III of this Act, the suit should have been stayed. Since Nakta was not small farmer, he could not claim benefit of this Chapter, specifically Section 10. This section applies only In respect of debt due from a small farmer and not from any other person.

It may also be mentioned that the record reveals that these two pleas were agitated in the final decree proceedings and were turned down by the trial court proceeding to prepare final decree through its order dated 12th November, 1979.

No other point was pressed.

In view of the above discussion, I do not find any merit in this appeal. It is liable to fail.

The appeal is dismissed with costs.