VUTTU APPALASWAMY Vs. GUNDALA RATNANAMMA

JUDGEMENT

(1.) The petitioner herein is the judgment debtor in O.S. No. 102 of 1979 in the Court of the District Munsif Vijayawada. Tne Respondent is the decree holder. In the proceedings initiated for execution of tne decree, the judgment-debtor claimed that he is a 'debtor' within the meaning of Section 3 (j) of the Andnra Pradesh Agricultural Indebteaness (Relief) Act, 1977 (Act No. 7 of 1977) (for short 'the Act'), inasmuch as he is a small farmer under Section 3 (t) of the Act. The judgment-debtor claimed that he does not own any land himself but has been personally cultivating the land of about one acre belonging to one Yedavalli Nagaran from 1974. He stated that he cultivated the land through his labour and derives income of Rs. 400/- to Rs. 500/- per annum and that the income constituted his only means of livelihood. He therefore, claimed that the decretal debt should be deemed to have been discharged under Section 4 of the Act.

(2.) The executing Court enquired into the matter. No documentary evidence supporting the alleged lease of the one acre of dry land by Yedavalli Nagaiah in favour of the judgment-debtor was forthcoming. In his oral evidence, the judgment-debtor mentioned that a lease agreement was entered into every year since 1975 and that the lease deed relevant to the year 1980 was with the lessor. Yadavalli Nagaiah, the lessor, in his deposition before the District Munsif, mentioned that the lease deeds were in the custody of the judgment-debtor. Eventually, neither the judgment-debtor nor the lessor produced any lease deed in support of the alleged lease. Even so, the judgment-debtor produced the owner of the land, Yedavalli Nagaiah (P.W. 2) to prove his statement that he was cultivating one acre of land belonging to the said Nagaiah in the village Gollapudi. In his oral evidence, the said Nagaiah affirmed that the judgment-debtor had been cultivating the one acre of dry land as a tenant in the village Gollapudi, which is about seven miles from Vijayawada where the judgment-debtor resides. He further stated that the annual rent was Rs. 400/-. The judgment-debtor also produced one Smt. Duram Venkatamma (P.W. 3). Jn her oral evidence before the lower court, she stated that her husband owns two acres of land at Gollapudi village, which was adjacent to the land belonging to Yadavalli Nagaiah. She affirmed that the judgment-debtor has been cultivating the land belonging to Yadavalli Nagaiah since 1975 as a lessee For the decree-holder. One Kadiyala Venkateswara Rao of Gollapudi village (R.W.1) was examined. In his deposnion, he stated that Yadavalli Nagaiah was cultivating one aure oi dry banjar land. He further stated that, apart from the above land, Nagaiah has also 20 cents of wet land which he is personally cultivating. The said Kadiyala Venkateswara Rao stated that he was familiar with the one acre ot dry land beloning to Yadavalli Nagaiah and that it was never cultivated by the judgment-debtor. The witness further stated that the judgment-debtor was not a lessee of the decree-holder. The judgment-debtor examined himself as P.W. 1. In his deposition, he stated that he had been cultivating one acre of dry land belonging to Yadavalli Nagaiah and situate in the village Gollapudi since 1975. He entered into year lease agreement every year and was paying rent of Rs. 300/- per year. He further stated that he derived annual net income of Rs.400/-to Rs.500/- from the above agricultural land. He asserted that the income of Rs. 400/- to Rs. 500/- derived annually by cultivating the above agricultural land was his only means of livelihood.

(3.) The Lower Court declined to accept the contention of the judgment-debior that he is a small farmer holding that the judgment-debtor failed to prove that he is a small farmer within the meaning of Sec. 3 (t) of the Act, in as much as he failed to discharge the burden of proof placed on him. The Lower Court disbelieved the evidence of P.Ws. 2 and 3, who affirmed that the judgment-debtor was cultivating one acre of dry land belonging to Yadavalli Nagaiah and preferred to accept the oral evidence of R.W. 1, Kadiyala Venkateswara Rao, who stated that the judgment-debtor had not been cultivating the land of Yadavalli Nagaiah and he was not a lessee. It appears to me that the Lower Court misdirected itself in holding that the judgment-debtor did not discharge the burden that lay on him to establish that he was cultivating the one acre of land belonging to Yadavalli Nagaiah. A fact can be established either by documentary evidence or by oral evidence or by both. It is true that, in the present case, the judgment-debtor as well as the owner of the land were evasive about the lease deeds, although it was stated that they were executed. It could, therefore, be said that the judgment-debtor was unable to establish the factum of lease by producing any documentary evidence. Even so, he produced the owner of the land, .Yadavalli Nagaiah and also Duram Venkatamma owning two acres of land adjoining the land of Yadavalli Nagaiah in the village Gollapudi. Both these witnesses affirmed of their own personal knowledge that the judgment-debtor was cultivating the land of Yadavalli Nagaiah from 1975 onwards. The Lower Court observed that P.Ws. 2 and 3 did not establish by producing appropriate documents that they really owned any land in the village Gollapudi. It must be pointed out that, even the witness (Kadiyala Venkateswara Rao(R.W. 1) produced by the decree-holder affirmed the fact that Yadavalli Nagaiah was owning one acre of land in the village Gollapudi. There is no evidence on record, and was much less adduced by the decree-holder, to contradict the fact that Yadavalli Nagaiah was the owner of one acre of dry land in the village Gollapudi. No grounds were shown as to why the evidence of P.Ws. 2 and 3 should be disregarded and the evidence of RW 1 should be preferred. It is true that this Court will not generally interfere with the finding of a lower court upon consideration of evidence, both pro and con. In the present case, the question is not merely one of appreciation of evidence but related to the discharge of initial burden that lay on the judgment-debtor to show that he is a small farmer under Section 3(t) of the Act, because be does not either own or cultivate the land in excess of the prescribed limit. Once the judgment-debtor furnishes information relevant for the purpose and also adduces evidence, whether oral or documentary, in support of the particulars furnished by him it must be said the that judgment-debtor had discharged the initial burden that lay on him. In terms of Section 13 of the Act, the burden shifts on to the decree-holder to rebut the evidence adduced by the judgment debtor and to establish that the judgment-debtor was not a small farmer. The Lower Court chose to reject the evidence of the judgment debtor on the erroneous promise that no evidence was forthcoming to show that Yadavalli Nagaiah owned one acre of land in the village Gollapudi. There is the irrefutable evidence of P.Ws. 2 and 3 and R.W. 1 supporting the fact that the said Yadavalli Nagaiah owned one acre of land in the village Gollapudi. There was no information or evidence to the contrary. The Lower Court, therefore, acted with material irregularity in recording a finding that the judgment-debtor was not able to establish that he was cultivating one acre of dry land belonging to Yadavalli Nagaiah of Gollapudi village. The inference drawn by the Lower Court is unsupportable with reference to the facts proved by oral evidence and cannot be sustained. Learned Counsel for the respondent, Sri Parabrahma Sastry, contended that, in exercise of revisionary jurisdiction under Section 115 C.P.C., this Court ought not to interfere with the finding recorded by the Lower Court on appreciation of evidence. Learned Counsel further stated that, even if there is any error in the inference drawn by the Lower Court in appreciating evidence, jurisdiction is not conferred on this Court under Section 115 C.P.C. lo interfere with such inferential finding. It is not necessary to examine these contentions in detail, as the question in the present case is not merely one of appreciation of evidence but one relating to the application of the principle of burden of proof embodied in Section 13 of the Act. If the facts and circumstances of the case indicate that the judgment-debtor has discharged his initial burden of establishing his contention, it must be held that; in terms of Section 13 of the Act, the burden squarely lies on the decree-holder to show that the judgment-debtor is not a small farmer within the meaning of Section 3(t) of the Act. In the present case, the evidence unmistakably shows that the judgment- debtor discharged the burden that lay on him initially to show that he has not been the owner or cultivating the land as a tenant in excess of the prescribed limit and consequently, the burden shifted on to the decree-holder to show the contrary. In the present case, the decree-holder did not discharge his burden in terms of Sec. 13 of the Act. The lower Court was therefore, in error in holding that the judgment-debtor failed to discharge the burden that lay on him. The finding of the lower Court on this point cannot, therefore, be upheld.