Niranjan Nath vs Kailas Kaul and Another

Kilam, J.

In this case Defendant 1 has claimed the status of an agriculturist which if proved would necessitate the trial of this suit under the provisions of the

Agriculturists' Relief Act. The following two issues were struck in this connection :

Does the Defendant come within the definition of an agriculturist as defined in the A.R.A. of 1983? O.P. on Defendant: (2) In case issue No. 1

is proved in favour of the Defendant does it take away the suit from the jurisdiction of this Court? O.P. on Defendant. To prove these two issues

the Defendant has produced four witnesses, by name, Prem Nath, Mohd. Maqbul, Qadir Khan and Ghulam Nabi. He has also appeared as his

own witness. Pt. Prem Nath has stated that Defendant 1 is dependent for his living on his agricultural income and pension. He does not know what

is the amount of his pension. He has added that 8 or 10 years ago Pandit Kailas Kaul (Defendant 1) has mortgaged with possession his agricultural

land and that the mortgagee received all the benefits from the land. This witness does not know as to what is the income which accrues to Kailas

Kaul from his lands. Mohd, Maqbul Patwari has stated that there are about 76 Kanals & 7 Marias of land entered in the name of Kailas Kaul

which the witness says have been mortgaged by him with one Samsar Chand who received benefits from this land and also pays the land revenue.

This witness also does not know the actual income which this land yields. Qadir Khan Defendant's witness says that Kailash Kaul possessed about

80 Kanals of land which he has sold to some body and has spent the sale consideration thereof for his maintenance. Ghulam Nabi another witness

of the Defendant says (sic) Kailash Kaul. was dependent for his living upon his agricultural income previously, but now he has mortgaged this land

with one Samsar Chand. He also says that Samsar Chand receives all the benefits from the land. The Defendant in his statement has admitted that

he has mortgaged his agricultural land with Samsar Chand in lieu of 2000/- which he adds is being spent by him for and his wife's maintenance. He

has denied that he has anything to do with his sons, though he admits that they have a joint ration ticket. The Plaintiff has produced Samsar Chand

mortgagee. He says that the present mortgage was executed by Kailas Kaul Defendant as he required money for trade purposes. He also says that

Kailas Kaul had a cloth shop once and later on he was doing contract business which he has now given up 4 or 5 years ago.

It is an admitted fact that on the day when the present suit was brought, Defendant 1 possessed no land, though according to law the ownership

in the mortgaged land subject to the conditions laid in the mortgage rests in him. This also is admitted that he has not been receiving any income

from the land for the last 8 or 10 years and that on the day when the present suit was lodged, he did not receive any income from any agricultural

sources. As such Kailas Kaul cannot claim the status of an agriculturist. What he had to prove specifically was that he was wholly or principally

dependent for his maintenance upon agricultural, horticultural or pastoral pursuits. Not a word has been breathed in this connection either by the

Defendant or his witnesses, Kailash Kaul has admitted that he reiceives a pension of Rs.22/- per month. As already stated, it is admitted that he

does not receive any income from his land now. Under these circumstances he cannot be held to be an agriculturist.

The Defendant's learned Counsel drew my attention to the explanation to Section 2 of the A.R.A. Basing his argument upon this explanation, he

submitted that an agriculturist will always remain an agriculturist even though temporarily he ceased to earn his livelihood by such labour or pursuits,

provided he had no intention of changing his status. The word ""temporarily"" is very significant in this section. ""Temporarily"" would in no case mean

years, as in the present case. Apart from, this, we have got to see as to whether the difendant was an agriculturist on the day when he mortgaged

his lands with Sansar Chand. The mortgage in favour of Sansar Chand was executed in the year 1998, as stated by the Defendant himself. The

Defendant had got to prove that on the date when he executed the mortgage deed, he was an agriculturist. According to the Patwari, the Chakla

rate in the village where the mortgaged land is situate, is one Khirwar and 5 traks of Shali per Khirwar. Out of this 10 1/2 traks would be the share

of the Defendant. Even though a uniform Chakla rate be presumed for all types of land-the Defendant's land consists of Abi awal 51 Kanals, Abi

dom 15 Kanals and Abi Som 2 Kanals-the gross share of the Defendant from the produce of the land would be nearly about 42 Khirwars, the

cost of which according to the rate prevailing then would be about Rs. 210/- (at the rate of Rs. 5/- per Khirwar which was then the prevailing rate

in Srinagar in the villages it was much less). Out of this according to statement of the Patwari, the Defendant had to pay about Rs. 60/-as land

revenue. Deducting this amount of land revenue from Rs. 210/- the net income that would accrue to the Defendant would be Rs. 150/-, which

would work out at Rs. 12/8/- per month. As against this, the Defendant was drawing a pension of Rs. 27/8/- per month. From this it would (sic)

clear that the Defendant was not dependant for his livelihood wholly or principally upon agriculture.

The section has another aspect too. Reference may be made to explanation (a) to Sub-section (1) of Section 2 of the Act on which the whole

argument has been based by the learned Counsel. The explanation runs as follows:

An ""agriculturist"" who, without any intention of changing his status as such, temporarily ceases to earn his livelihood by such labour or pursuits...

does not thereby cease to be an agriculturist"" within this definition.

The word ""labour"" is very significant here and has to be understood in the larger context of the whole section. In Sub-section (1) of Section 2 of

the A.R.A. we find that the word labour occurs along with the words ""ordinarily engages personally in agricultural labour"", Therefore in order to

claim the benefit of the explanation, the Defendant had to show that he was 0n the date when the mortgage was executed, ""ordinarily engaging

himself personally in agricultural (sic) case, nor has he shown that he was ever engaged personally in agricultural labour. Reference may in this

connection be made to the explanation which follows Sub-section (i) of Section 2, Dekkhan Agriculturist's Relief Act."" In this explanation we find

that ""an agriculturist who, without any intention of changing his status as such, temporarily ceases to earn his livelihood by agriculture or to engage

personally in agricultural labour... does not thereby cease to be an agriculturist."" Now according to this explanation all agriculturists whether they

earn their livelihood by themselves or by their servants or tenants wholly or principally by agriculture and also those who engage' personally in

agricultural labour are given the benefit of the explanation. But in our explanation the phrase ""earn his livelihood by agriculture"" is missing, and

instead we have simply ""temporarily ceases to earn his livelihood by such labour"" which we have shown above, would mean agricultural labour in

which the person claiming the status of an agriculturist has to ordinarily engage himself personally.

Under these circumstances I do not find that the Defendant can derive any benefit from this explanation. I, therefore, hold that the Defendant is

not an agriculturist. Issue Nos. 1 and 2 are decided against the Defendant.

Let the case come up for hearing on some other date.