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1960 Supreme(All) 169
IN THE HIGH COURT OF ALLAHABAD
B. Mukerji, B. Nigam and R. A. Misra, JJ.
CHANDRAWATI TEWARI - Appellant
Versus
UTTAR PRADESH GOVERNMENT - Respondents
Execution Decree Appeal 1 Of 1957
Decided On : 09/23/1960
G.P.Bajpai, G.S.TRIVEDI, P.S.Dwivedi
Headnote:
AGRICULTURIST - DEFINITION - MEANING - INTERPRETATION - SECTION 60(1)(C) OF THE CODE OF CIVIL PROCEDURE, 1908 - HELD, the question whether a person is an agriculturist or not is a question of fact to be determined on the circumstances of each case.
Fact of the Case:
The State of Uttar Pradesh obtained a decree for costs in a proceeding under the Land acquisition Act against Inder Dutt Tewar. In execution proceedings this case was registered as execution. Case No. 13 of 1954. It was prayed that the house in question be sold. Thereupon inder Dutt Tewari filed an objection under Section 47 of the Code of Civil Procedure. This was registered as Miscellaneous Case No. 128 of 1956. The objector urged that he was an agriculturist within the meaning of Section 60 of the Code of Civil Procedure and that the house attached and put to sale was his residential house and he was in actual occupation as such. He, therefore, prayed that the house be released from attachment and sale under Section 60 of the code of Civil Procedure, The State Government filed an objection pointing out that the objector was not an agriculturist as agriculture was not his main source of income and he did not personally till the land. It was pointed out that he owned many buildings. Two other objections were taken urging that the objector had previously mortgaged the house and that he was in possession only of a portion of the building.
Finding of the Court:
1. The question whether a person is an agriculturist or not is a question of fact to be determined on the circumstances of each case, 2. No inflexible rule or yardstick can be laid down and the question must be decided essentially on the circumstances of each case for we are of the opinion that there may be so many variations in the circumstances of each case that no inflexible rule could be laid down. 3. Ordinarily whether a person is an agriculturist or not is not a question turning on the sources of his income but on the nature of his occupation. If he engages personally in agriculture in order to earn his livelihood. e. , not as a hobby and devotes most of his time, energy and skill to agriculture then he would normally be entitled to be classed an agriculturist. 4. He must actively take part in the process of cultivation either by tilling or actively directing and supervising on the spot the process of agriculture. A person who merely owns the land and either lets it out to others or engages in agriculture through servants and labourers without taking any active part himself in the day-to-day work of the agriculture, would not be an agriculturist even though the proceeds of this land are the main source of his income and he is unable to maintain his normal standard of life without the income from this land. 5. Cultivation must be engaged in with the intention of securing a really substantial portion of the means of livelihood. It is not necessary that it should be the main source of his income but the income in a normal year must be such as without it the person concerned would be unable to maintain his standard of living. Thus, the engagement in agriculture should be essential for his living in his accustomed manner. 6. The person concerned must, in order to qualify as an agriculturist, devote the major part of his time, labour, attention and skill to cultivation of land. Otherwise agriculture would not be his occupation and he would not be said to be an agriculturist.
Issues: Whether the objector was an agriculturist within the meaning of Section 60 of the Code of Civil Procedure.
Ratio Decidendi: The question whether a person is an agriculturist or not is a question of fact to be determined on the circumstances of each case. No inflexible rule or yardstick can be laid down and the question must be decided essentially on the circumstances of each case. Ordinarily whether a person is an agriculturist or not is not a question turning on the sources of his income but on the nature of his occupation. If he engages personally in agriculture in order to earn his livelihood. e. , not as a hobby and devotes most of his time, energy and skill to agriculture then he would normally be entitled to be classed an agriculturist. He must actively take part in the process of cultivation either by tilling or actively directing and supervising on the spot the process of agriculture. A person who merely owns the land and either lets it out to others or engages in agriculture through servants and labourers without taking any active part himself in the day-to-day work of the agriculture, would not be an agriculturist even though the proceeds of this land are the main source of his income and he is unable to maintain his normal standard of life without the income from this land. Cultivation must be engaged in with the intention of securing a really substantial portion of the means of livelihood. It is not necessary that it should be the main source of his income but the income in a normal year must be such as without it the person concerned would be unable to maintain his standard of living. Thus, the engagement in agriculture should be essential for his living in his accustomed manner. The person concerned must, in order to qualify as an agriculturist, devote the major part of his time, labour, attention and skill to cultivation of land. Otherwise agriculture would not be his occupation and he would not be said to be an agriculturist.
Final Decision: The question whether a person is an agriculturist or not is a question of fact to be determined on the circumstances of each case.
( 1 ) THE State of Uttar Pradesh obtained a decree for costs in a proceeding under the Land acquisition Act against Inder Dutt Tewar. In execution proceedings this case was registered as execution. Case No. 13 of 1954. It was prayed that the house in question be sold. Thereupon inder Dutt Tewari filed an objection under Section 47 of the Code of Civil Procedure. This was registered as Miscellaneous Case No. 128 of 1956. The objector urged that he was an agriculturist within the meaning of Section 60 of the Code of Civil Procedure and that the house attached and put to sale was his residential house and he was in actual occupation as such. He, therefore, prayed that the house be released from attachment and sale under Section 60 of the code of Civil Procedure, The State Government filed an objection pointing out that the objector was not an agriculturist as agriculture was not his main source of income and he did not personally till the land. It was pointed out that he owned many buildings. Two other objections were taken urging that the objector had previously mortgaged the house and that he was in possession only of a portion of the building.
( 2 ) ON this objection the learned District Judge framed three issues :
1. Whether the objector is an agriculturist as contemplated by Clause (c) of the proviso to sub-section (1) of Section 60 C. P. C. ? 2. Whether he occupies the building in dispute?.
3. Whether the Clause (c) of the proviso to Sub-section (1) of Section 60 C. P. C. is not applicable to the case because he has mortgaged the house to Sardar Sadhu Singh?. The learned District Judge held that mortgage was not in favour of the decree-holder and that agriculture was not the judgment-debtors main source of living and he did not till the soil with his own hand but got it tilled through servants. The learned District Judge pointed out that, according to the objector himself, his annual income from agriculture was only 150/- a year, whereas his income from the house properties was Rs. 181/- per month,. e. , Rs. 2172/- a year. It was admitted before the learned District Judge that the objector was not the only person in occupation of his house. The learned District Judge, accordingly, dismissed the objection with costs. Against that decision, this first execution of decree appeal has been preferred by the five legal representatives of Inder Dutt Tewar. The appeal came up before a learned single Judge. He has made a reference to a Full Bench. That is how the case has come up before us.
( 3 ) THE learned single Judge has referred to the case of Tirloki Prasad v. Kunj Behari Lal AIR 1935 All 448 and the case of Shiamlal v. Smt. Sahodra Devi, 1060 All LJ 177 : (AIR 1960 All 429) and has suggested that the difference of opinion expressed in the two decisions be reconciled. He has further stated:
"but even so the authorities of other High Courts are not to be given effect to by a learned single Judge of this Court when there are Division Bench cases of this Court to follow and to the contrary. Mr. Justice Dhavans reasoning however cannot be brushed aside. . . . . . . . It has to be considered whether a person, because he carries on agriculture while at the same time he is possessed of other substantial income should nonetheless be put in a protected position when other persons who have substantial income not derived from agriculture are not. . . . . . . . . I think it is necessary that a Full Bench should be constituted to consider whether Triloki Prasads case, AIR 1935 All 448 has been properly decided or whether Shiamlals case, 1960 All LJ 177: (AIR 1960 all 429) is the correct decision. " Section 60 of the Code of Civil Procedure so far as it is relevant for our purposes reads :
60 (1) The following property is liable to attachment and sale in execution of a decree, namely,. . . . . . . . houses or other buildings. . . . . . . and, save as hereinafter mentioned all other saleable property, movable or immovable, belonging to
