THAKKAR LADHARAM DEVKARAN Vs. PATEL NAVJI PACHAN PANJWANI

JUDGEMENT

(1.) The petitioner is aggrieved by the orders of the Debt Settlement Officer and the Appellate Officer holding that the first respondent is a small farmer entitled to the benefit of the Gujarat Rural Debtors Relief Act. This finding is challenged by the creditor-petitioner and it is submitted that the respondent debtor has right from the date of execution of mortgage document and in the civil suit and the consent decree admitted that he is the exclusive owner of the lands of four survey numbers and on that basis he cannot be said to be a small farmer because the extent of his holding exceeds the limit of holding of a small farmer.

(2.) Both the authorities have held that the land originally belonged to the father of the respondent no.1-debtor and the petitioner was not the only son and therefore he cannot be said to be the exclusive holder of the land. The revenue record also corroborates the say of the debtor. The learned Counsel for the petitioner submitted that the revenue record has only presumptive value and when the debtor himself has repeatedly said that he is the exclusive owner that presumption is rebutted. The presumption is not rebutted by mere assertion but depends on the probative value and validity of the assertion. When admittedly the land belonged to the father and after his death it is shown to be belonging to the sons and heirs of the father in the revenue record that presumption can be rebutted only by showing that the other co-sharers had relinquished their shares or that on partition this land had come to the exclusive share of the debtor. In absence of such evidence it cannot be said that the presumption is rebutted. Both the authorities have given concurrent findings of fact that the respondent no.1- debtor is a small farmer because he is not the exclusive owner of the land of four survey numbers and there are different holders of the land and the share and holding of the respondent no. 1-debtor is less than that of a small farmer. This concurrent finding is supported by evidence and no interference is called for with this finding.

(3.) The learned Counsel for the petitioner also submitted that the respondent no. 1-debtor had produced some documents behind the back of the petitioner after hearing before the Appellate Authority was over. Although it is averred that the hearing was on 18.4.1980 and the 1st respondent had subsequently sent some application on 22.4.1980 it is not shown as to on what basis it is averred that it was subsequently sent on 22.4 The affidavit is of 16.4.1980. Therefore this averment made in para 13 of the petition is not supported by any material. In any case even if those documents are ignored then also the findings of both the authorities are supported by evidence. Hence petition is dismissed. Rule discharged. No costs. Petition Dismissed.