M. THANGAVELU CHETTY Vs. CHINNASAMY AND ORS.

JUDGEMENT

(1.) THE petitioner herein seeks a writ of certiorari from this Court to have the order dated 2 -3 -1981 of the third respondent affirming the order dated 20 -9 -1980 of the second respondent, quashed.

(2.) THE first respondent herein and his younger brother took a loan of Rs. 1,000/ - from the petitioner on execution of a mortgage of their lands in S. No. 368 and S. No. 367/2 in Thimmapuram village. The first respondent filed an application under the Tamil Nadu Debt Relief Act, 1976 hereinafter referred to as the 1976 Act, before the second respondent for relief in respect of the mortgage. The second respondent has, by his order dated 20 -9 -1980, held that the first respondent owns only a half share in the lands mortgaged which consist of 0.50 cents wet in S. No. 368 and 0. 16 cents dry in S. No. 367/2 of Thimmapuram village, and that therefore, he is a small farmer owning lands within the limit prescribed by the 1976 Act. He therefore ordered, "that the loan obtained by him is discharged and the mortgaged land is released to him". The mortgagee -creditor filed an appeal before the appellate authority, the third respondent herein, contending that the first respondent is getting an annual income of Rs. 9,000/ -, that he is also a money lender lending money on promissory notes to various persons in the village and that therefore he is not entitled to the benefits of the 1976 Act. The third respondent, however, by his order dated 2 -3 -1981, held that the first respondent was in possession of lands within the limit prescribed by the 1976 Act, that he was entitled to the benefits of the said Act and that therefore there was no reason to interfere with the order of the second respondent.

(3.) AS regards the first contention, it is not in dispute that the first respondent owns lands within the limit prescribed by the 1976 Act and that therefore he comes within the definition of a 'small farmer'. Though the petitioner has asserted that the first respondent is getting an annual income of more than Rs. 9,000/ - and therefore he cannot be treated as a small farmer, no evidence, has been adduced before the authorities below as to the exact annual income which the first respondent is getting. As a matter of fact, the petitioner herein was ex parte before the Tahsildar, though notice of enquiry was duly served on him. No acceptable evidence has been produced by the petitioner to show that the first respondent is getting an annual income of Rs. 9,000/ - In the absence of evidence showing that the first respondent is getting an annual income of Rs. 9,000/ - as alleged by hi, it is not possible for this Court to interfere with the finding given by the second respondent and confirmed by the third respondent. Admittedly, the first respondent is owing along with his brother an extent of 50 cents, wet in S. No. 368 and 16 cents, dry in S. No. 367/2 of Thimmapuram village. The first respondent has not been shown to have any land apart from the said two bits of land. Having regard to the fact that the first respondent has not been shown to own lands in excess of the limit prescribed by the 1976 Act, it should be taken that he is rightly declared as a small farmer by the authorities below and as such entitled to the benefits of the 1976 Act. Once the first respondent is entitled to the benefits of the 1976 Act, then the debt due by him should be taken to have been discharged as per S. 4(a) of the said Act, which says that every debt advanced or incurred before the commencement of the said Act and payable by the debtor to the creditor shall be deemed to be wholly discharged. The first contention of the petitioner should therefore be rejected.