T. Thiravia Nadar vs S. Thiravia Nadar

Maharajan, J.—This civil miscellaneous second appeal arises under the following circumstances. The respondent obtained a decree against

the apaellant in O S. No. 118 of 1970 on the file of the Ambasamudram District Munsif''s Court on foot of a promissory note. In execution the

decree-holder sought to brine the judgment-debtor''s house to sale. The judgment-debtor filed E. A. 952 of 1971 Praying for the dismissal of the

execution petition. The main basis upon which he asked for dismissal is that under proviso (c) to Section 60(1), Civil P. C. the house belongs to an

agriculturist and is occupied by him and, therefore, it is not liable to attachment or sale. The Judgment-debtor''s contention was that he was an

agriculturist within the meaning of Section 60(1)(c). Civil P. C. The decree-holder filed a counter in which he contended that, by virtue of the

findings in O. S. No. 118 of 1970 and A. S. 35 of 1971, the judgment-debtor was barred by res judicata from contending that he is entitled as an

agriculturist to the benefits of Section 60(1)(c). Civil P. C. He further contended that the judgment-debtor was not entitled to claim the relief,

inasmuch as he remained ex parte in E. P. 404 of 1971, and he had allowed attachment before judgment to be confirmed. The judgment debtor

examined himself as P. W. 1 and one Daveedu Nadar as P. W. 2. He also filed a number of documents in support of his plea that he was an

agriculturist. The decree-holder led no oral evidence in refutation of the judgment-debtor''s plea. He merely produced a certified copy of the

judgment in A. S. 35 of 1971, had it marked as Ex. B-1 and contended that the judgment-debtor was not entitled to the benefits of Section 60(1)

(c), Civil P. C. The Court of first instance dismissed the execution application of the judg-ment-debtor after holding that his plea was barred by res

judicata. An appeal filed by the judgment-debtor to the Subordinate Judge. Tirunelveli, was also dismissed. It is against the dismissal of the appeal

the present civil miscellaneous second appeal has been filed.

I may at the very outset say that both the Courts below have been labouring under a misconception as to the meaning of the word ''agriculturist''

employed in Section 60(1)(c). Civil P. C. Evidently, they seem to have taken for granted that the concept of an agriculturist as contemplated by

Section 60(1)(c), Civil P. C. is the same as. and in no way different from, the concept of agriculturist under Madras Act IV of 1938. u/s 3 of

Madras Act IV of 1938, an agriculturist means a person, who has a saleable interest in any agricultural or horticultural land in the State of Tamil

Nadu or holds an interest in such land under a land holder under the Tamil Nadu Estates Land Act. 1908, as tenant, ryot or under tenure holder or

holds an interest in such land recognised in the Malabar Tenancy Act, 1&29 (Tamil Nadu Act XIV of 1930) or holds a lease of such land from

any person specified in Sub-clause (a), (b) or (c) or in a sub-lessee of such land. The proviso to this section takes out of the definition of

''agriculturist'' a person who has been assessed to Income Tax or profession tax on a half yearly income of more than one thousand and two

hundred rupees or has been assessed to property or house tax or land holder of estate in respect of which any sum exceeding five hundred rupees

is payable as peshkush or any sum exceeding one hundred rupees is payable by way of Quit rent, jodi. kat-tubadi. poruppo or other due of a like

nature. On the other hand. Section 60. Civil P. C. which was framed in 1908. had a different notion of an agriculturist altogether when it used that

word in Section 60(1)(c). The connotation of the word has been authoritatively expounded by the Supreme Court in Shrimant Appasaheb

Tuljaram Desai and Others Vs. Bhalchandra Vithalrao Thube, -Their Lordships said-

The word ''agriculturist'' in this clause must carry the same meaning as the word ''agricuturist'' in clause (b) and the house must be occupied by him

as such. The object of the exemption in clause (c) apparently is that an agriculturist should not be left without a roof over his head. In other words,

the legislature intended by clauses (b) and (c) to prevent an agriculturist becoming destitute and homeless- It was, however, agreed on behalf of the

appellants that there are no restrictive words in clause (c). So long as it was a house belonging to an agriculturist and occupied by him. it was

exempted from attachment no matter what other income than agricultural was earned by him. The Wada in question was clearly occupied by the

appellants for the purpose of tilline the land of the home farm and for storing the produce thereof, the implements of husbandary and tethering of

cattle employed in cultivating the land. It seems to us on the evidence of the appellant''s own witness, that they do not themselves till the land of the

home farm which is done by a large number of labourers employed by them. Tuljaramrao did not himself cultivate the land. He merely supervised

the work of cultivation by the labourers.... .........It seems to us that even if it is not necessary that a person must till the land with his own hands to

come within the meaning of the word ''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. In the present case it is quite obvious that even if the appellants can be described as agriculturists in the widest

sense of that term, they are not agriculturist who are really dependent for their maintenance on tilling the soft and that they are unable to maintain

themselves otherwise,

In considering the case of the judgment-debtor that he is an agriculturist within the meaning of Section 60(1)(c). Civil P. C. and, therefore, his

house is not liable to attachment, the Courts below went completely off the track and allowed themselves to be influenced ''by the findings in the

suit and in the appeal. In the suit, the appellant wanted a scaling down of the debt under Madras Act IV of 1938 and he claimed the scaling down

on the basis that he was an agriculturist within the meaning of that Act. This was denied by the plaintiff. The trial Court gave the finding that he did

not hold any saleable interest in any agricultural land and, therefore, was not an agriculturist within the meaning of Madras Act IV of 1938. The

Appellate Court confirmed this finding. But I fail to see how the finding that tine judgment-debtor is not an agriculturist within the meaning of

Madras Act IV of 1938, could necessarily be tantamount to a finding that he is not an agriculturist within the meaning of Section 60(1)(c). Civil P.

C. As I have already pointed out, an agriculturist u/s 60. Civil P. C. need not have a saleable interest in land; nor need he even be a lessee of the

land. It is sufficient if he is merely tiller of the soil and depends exclusively for his living on tilling the soil and he is unable to maintain himself

otherwise. The Courts below erred in holding that the claim of the judgment-debtor for the benefits of Section 60. Civil P. C. is barred by res

judicata. They ought to have considered the oral evidence of P. Ws. 1 and 2 to the effect that the judgment-debtor has been tilling the agricultural

land of his own father. They failed to consider the oral evidence, because they erroneously held that the judgment-debtor was precluded by res

judi-cata from raising the plea. As I have already observed, the finding of the Courts in the suit that the judgment-debtor was not an agriculturist

cannot bar by way of res judicata, the plea of the judgment-debtor that he is an agriculturist u/s 60(1)(c), Civil P. C. As the misconception in this

behalf has vitiated the judgments of the Courts below I set aside those judgments and remand the matter to the first Court for fresh disposal after

giving both the parties an opportunity to lead fresh evidence, oral and documentary. The pleadings are nebulous. However, it is open to the parties

to clarify the pleadings by filing additional pleadings. After giving both parties an opportunity to clarify their pleadings and adduce additional

evidence on the appellants'' status as an agriculturist within the meaning of Section 60(1)(c). C. P. C.. the Court will dispose of the matter on the

merits in the light of the observations made in this judgment. Costs will abide the result. Leave is refused.