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1969 DIGILAW 219 (ALL)

Azmat Ali v. Raj Ditta

1969-08-05

D.S.MATHUR

body1969
JUDGMENT D.S. Mathur, J. - This is an Execution First Appeal by Azmat Ali, Judgment Debtor, against the order dated 9-10-1967 of the II Civil Judge, Meerut, dismissing his objection to the attachment and sale of the house in dispute. His case was that he was an agriculturist and his house was exempt from attachment and sale under clause (c) of the proviso to Section 60 (1) of the Code of, Civil Procedure . The Civil Judge regarded the oral testimony of the Judgment-debtor to be unsatisfactory and recorded the finding that there was no sufficient income from agriculture and he had other sources of income. 2. It is true that the learned Civil Judge has by making sweeping remarks disbelieved the appellant. He should have made detailed comments on his testimony and also the testimony of Ram Ditta, decree holder. They were the only two witnesses examined by the parties and matters in controversy had to be decided on drawing inferences by reading their deposition together. 3. The decree under execution was obtained in a suit based on a pronote for Rs. 10,500/-. The case of the decree holder is that the loan was taken for business and not for agricultural purposes. Azmat Ali denied that he and his father, Nanhev Khan, carried on the business of Khas. This is evidently an incorrect statement. A loan of Rs. 10,500/- was not required for purposes of cultivation and if the loan was taken for such a purpose, the judgment-debtor could have indicated what purchases were made and how that loan was spent. A big sum of money would have been required for purchase of a tractor or constructing a tube-well, and not for purchase of a few bullocks or for purchase of a plough. The purchase of tractor or construction of a tube-well could be proved without difficulty. In the above circumstances, it must be held that Azmat. Ali has not made a true and straight-forward statement. However, from his statement on oath it comes out that he along with others had about seventy Bighas Kachcha land under cultivation and his share therein came to about 30 Bighas Kachha. In the 'Rabi' season he had sown barley and Tara and what he could harvest from the total holding of seventy Bighas Kachha was one maund of Tara costing Rs. 50/- and ten maunds of barley costing Rs. 40/- per maund. In the 'Rabi' season he had sown barley and Tara and what he could harvest from the total holding of seventy Bighas Kachha was one maund of Tara costing Rs. 50/- and ten maunds of barley costing Rs. 40/- per maund. The crop so harvested from the holding was worth Rs. 450/- Azmat Ali also admits that he had given the due share to their other cotenure holders. In such a case his income from the agricultural land will come to less than Rs. 220/- for the Rabi season. In the Kharif, he had sown 'Jwar' and 'Bajra' but it was meant for fodder. In other words, according to Azmat Ali himself, he could earn Rs. 220/- only from the agricultural land and this is the amount which could be utilised for the maintenance of his family. 4. In cross-examination Azmat Ali also stated that he used to sell the fruits of the grove. The area of the grove and the annual income therefrom has not come out in his cross-examination. But Ram Ditta stated in cross-examination that the judgment-debtor and his brother owned 100 Bighas grove and the income thereof for two years was Rs. 8,000/-. The annual income of the judgment-debtor from the grove can thus be taken to be Rs. 2,000/-. 5. Azmat Ali was questioned about his monthly expenses and he has given this figure as Rs. 200/- per month. He also stated that he was doing the work of loading and unloading and his son was plying rickshaw. 6. From the above, it shall be evident that if the income from the grove is not regarded as agricultural income for purposes of Section 60 C. P. C., the chief source of livelihood of the judgment-debtor shall not be agriculture: it shall be the grove or the business of loading and unloading. But if the income from grove is, for the purposes of Section 60 C. P. C., an agricultural income , his income from agriculture would be a substantial one and his chief source of livelihood can be said to be agriculture and hence the house in question shall be exempt from attachment and sale. 7. But if the income from grove is, for the purposes of Section 60 C. P. C., an agricultural income , his income from agriculture would be a substantial one and his chief source of livelihood can be said to be agriculture and hence the house in question shall be exempt from attachment and sale. 7. The scope of clause (c) of the proviso to Section 60 C. P. C., came up for consideration before the Supreme Court in the case of Shrimant Appasaheb Tulia Desai and others v. Bhalchandra Vithalrao Thube, A.I.R. 1961 SC 589. It was held therein that the word "agriculturist" in clause (c) must carry the same meaning as the word "agriculturist" in clause (b) and the house must be occupied by him as such; and that even if a person was an agriculturist in the widest sense of the term, he was not an agriculturist within the meaning of the above clauses, if he was not really dependant for his maintenance on tilling the soil and was able to maintain himself otherwise. 8. Similarly, it was observed in Commissioner of Income-tax West Bengal, Calcutta v. Benoy Kumar Sahas Roy, A.I.R. 1957 SC 768. Whether the narrower or the wider sense of the term "agriculture" should be adopted in a particular case depends not only upon the provisions of the various statutes in which the same occurs but also upon the facts and circumstances of each case. The definition of the term in one statute does not afford a guide to the construction of the same term in another statute and the sense in which the term has been understood in the several statutes does not necessarily throw any light on the manner in which the term should be understood generally." 9. This leads us to the consideration of the question, whether a grove holder can claim to be an "agriculturist" within the meaning of clause (c) and his house is exempt from attachments and sale. 10. The term "agriculturist" has been given a very wide meaning in the U. P. Agriculturists Relief Act and under the Tenancy Acts' a grove land is also a land governed by the tenancy laws. But these definitions apply only to proceeding, under those Acts and cannot be made applicable to all the enactments. 10. The term "agriculturist" has been given a very wide meaning in the U. P. Agriculturists Relief Act and under the Tenancy Acts' a grove land is also a land governed by the tenancy laws. But these definitions apply only to proceeding, under those Acts and cannot be made applicable to all the enactments. Further, it shall not be safe to import the meaning of the term "agriculturist" contained in the U. P. Agriculturists Relief Act while considering the scope of Section 60, C. P. C. As laid down by the Supreme Court in the aforementioned two cases, we shall have to look into the provisions of the Code of Civil Procedure and also the facts and circumstances of the case while laying down whether the expression be given a narrow meaning to cover only the tillers of the soil or should be given a wider meaning to include horticulturists also. 11. The proviso to Section 60 (1) . C. P. C., lays down the items which are not liable to attachment and sale in execution of decree. The provisions material for determination of the above question are contained in clauses (b) and (c) thereof. Under clause (b) are exempted tools or artisans and in case of an agriculturist-judgment-debtor, his implements of husbandry and such cattle and seed grain as are necessary to enable him to earn his livelihood as such and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the succeeding section. In brief, Clause (b) exempts the tools of artisan, implements of husbandry and such cattle and seed grain as may be necessary to enable the person to earn his livelihood. The underlying object of the exemption is that as a result of the execution of the decree the judgment-debtor should not become incapable of earning his livelihood as an artisan or as an agriculturist. 12. Clause (c) of the proviso protects houses and other buildings belonging to an agriculturist and occupied by him. Clause (c) has to be read along with clause (b) . It is on considering the two clauses together that the Supreme Court held that an agriculturist, contemplated by clause (c) , is one whose chief source of livelihood is agriculture. 12. Clause (c) of the proviso protects houses and other buildings belonging to an agriculturist and occupied by him. Clause (c) has to be read along with clause (b) . It is on considering the two clauses together that the Supreme Court held that an agriculturist, contemplated by clause (c) , is one whose chief source of livelihood is agriculture. Hence for understanding the object of clause (c) , we must read both clauses (b) and (c) together. The underlying object of exempting houses and other buildings from attachment and sale, therefore, is that the agriculturist be able to carry on agriculture and as a result of the execution of the decree, he may not be so placed that he cannot properly till his land. 13. Similar inference can be drawn from Section 61 of the Code of Civil Procedure. Under this section the State Government can declare that such portion of agricultural produce shall be exempted from liability to attachment or sale in execution of a decree as may appear to the State Government to be necessary for the purpose of providing until the next harvest for the due cultivation of the land and for the support of the judgment-debtor and his family. If the judgment-debtor and his family, starve as a result of the total agricultural produce being sold in execution of the decree, they would not be in a position to properly cultivate their land. Similarly, if agricultural produce is not available for being used as seed during the next season, the judgment-debtor will not be in a good condition to properly cultivate his land. The underlying object of Section 61 also is that as a result of the execution of decree an agriculturist be not disabled from continuing the agricultural operations during the succeeding year. 14. Land under cultivation is open upto the sky and the harvested crop or the thrashed crop, cannot be stored there : it must be stored in some house or building. In other words, for proper agricultural operations, that is, the tilling of the soil, a house, dwelling or building is necessary and by depriving the agriculturist of such a building, he would not be in a good condition to cultivate his land during the succeeding season. But the same cannot be said of a grove. No permanent shelter is required for the fruits of the trees. But the same cannot be said of a grove. No permanent shelter is required for the fruits of the trees. Many fruits are plucked when they are ripe and are immediately sold in the market. If kept in the grove or at the residence, they are so kept for a very short period. In fact, ripe fruits can be temporarily kept in the grove and thereafter transported to the market for sale. Even if fruits are plucked when they are not ripe, they do not have to be kept for a long period. If the grove holder wishes to himself ripe, the fruits, he can do so in the grove itself. When a house, dwelling or building is not necessary for making profit from the grove, such house, dwelling or building need not be exempted from attachment and sale. Keeping this in mind, a restricted meaning to the term "agriculturist" can be given so as not be include a grove holder. 15. In this connection, it may also be observed that for planting trees in the grove, house is not necessary. No house or dwelling is necessary keeping in mind that implements necessary for planting the trees are small and are only a few which can easily be kept inside the grove, in a temporary construction. 16. To sum up, to enable a grove holder to make profits from his grove a house, dwelling or building is not necessary and hence for purpose of clauses (b) and (c) of the proviso to Section 60 (1) of the Code of Civil Procedure, a grove holder would not fall in the category of an "agriculturist". Hence, to determine whether the judgment-debtor was or was not an agriculturist, income from the grove is not to be treated as income from agriculture : his status as an agriculturist shall depend upon the tilling of the land and not the profits accruing from the grove. 17. As already held above, the income from the tilling of the land is Rs. 220/- per annum while according to the. judgment-debtor, his annual expenses would come to about Rs. 2,400/-. This shall make it clear that his chief source of livelihood is not the tilling of the soil, i.e. agriculture, but is from other sources. 17. As already held above, the income from the tilling of the land is Rs. 220/- per annum while according to the. judgment-debtor, his annual expenses would come to about Rs. 2,400/-. This shall make it clear that his chief source of livelihood is not the tilling of the soil, i.e. agriculture, but is from other sources. Hence, the judgment-debtor is not, within the meaning of Section 60, C. P. C., an agriculturist and his house is not exempt from attachment and sale. His objection was rightly dismissed by the court below. 18. The Execution First Appeal is hereby dismissed. Costs easy.