RAM PRASAD GOWALA Vs. JOGESH GOSWAMI AND ORS.

JUDGEMENT

(1.) THIS appeal of the Plaintiff's directed against the appellate judgment and decree passed by the Assistant District judge, Karimganj modifying the judgment and decree of the Munsiff No. 2, Karimganj in Title Suit No. 88/79.

(2.) THE case of the Appellant/Plaintiff before the trial Court was that the Defendant No. 1, on receipt of a sum of Rs. 3, 000/ -, executed a 'Swaranlipi' on 10.4.78 agreeing to transfer his jote right in respect of 4 bighas of land referred to as "suit land" after final khatian was issued in his favour and delivered possession of the same forthwith to the Plaintiff. Thereafter though final, khatian was issued in his favour he did not execute the sale deed in terms of agreement of sale. On the other hand, be executed a deed in favour of the Defendant No. 2 in respect of a part of the said land measuring if bighas out of 4 bighas agreed to be sold to the Plaintiff. The Plaintiff, therefore, filed a suit for direction to the Defendant No. 1 to execute a registered sale deed in respect of jote right over the suit land in favour of the Plaintiff, confirmation of Plaintiff's possession over the same and issue of permanent injunction against the Defendants restraining them from interfering with the possession of the Plaintiff. The suit was contested by both the Defendants. The learned trial Court, Munsiff, Karimganj, held the transfer of 2 bighas of the land by the Defendant No. 1 to Defendant No. 2 as violative of Section 8 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971, on the ground that the Defendants being a "tailor" and he having admitted in cross examination that he did not cultivate the land him -self, could not be termed as an agriculturist. The trial Court also held that there was a valid agreement executed by the Defendant No. 1 in favour of the Plaintiff agreeing to sell the suit land to him and accordingly, decreed the suit and directed the Defendant No. 1 to execute the sale deed of the suit land in favour of the plain -tiff within 30 days from the date of order. On appeal, the learned Assistant District Judge reversed the finding of the trial Court to the effect that the Defendant No. 2 was not an agriculturist. It was observed that though the Defendant No. 2 had a tailoring shop, he had also agricultural land. The learned appellate Court, therefore, held that the fact of running a tailoring shop by itself did not in any way mitigate against the claim of the Defendant No. 2 that he was an agriculturist. An agriculturist might also run a side business and running of such business does not make him a non -agriculturist, if he is otherwise an "agriculturist" within the definition of ''agriculturist" contained in the Act. The learned appellate Court also held that there was no evidence to justify a conclusion that the Defendant No, 2 had any knowledge of the agreement to sell the suit land between the Plaintiff and the Defendant No. 1 In view of the aforesaid findings, the learned first appellate Court held the sale of a part of the suit land by the Defendant No. 1 to Defendant No. 2 as sale to an agriculturist in conformity with the requirements of Section 8 of the Act. The Court also held that the purchase of 2 bighas of land by the Defendant No. 2, being without any knowledge of any prior agreement of sale, was a valid sale which remained unaffected by the same the learned appellate Court, therefore, modified the decree of the trial Court and directed the Defendant No. 1 to execute a sale deed in respect of the balance 2 bighas of the suit land in favour of the Plaintiff. It was also declared that the Plaintiff was entitled to a sum of Rs. 1500/ - as compensation for his failure to execute the sale deed in respect of the balance 2 bighas of land. The Plaintiff, is in second appeal before this Court against this appellate judgment.

(3.) I have considered the rival submissions. I have also carefully perused the two judgments of the Supreme Court on the subject. I, however, do not find that these judgments in any way support the submission of the Appellant. In fact, in the aforesaid judgments, the Supreme Court had observed that consideration of form should not over -ride the legitimate consideration of substance. It was also observed that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if is satisfactorily proved by evidence. It was further observed that what the Court has to consider in dealing with such an objection is that did the parties know that the matter in question was involved in the trial, and did they lead evidence about it. If that was so, the argument that a particular matter was not expressly taken in pleading would be purely formal and technical. The principle laid down by the Supreme; Court in the aforesaid judgments, however, have no application to the facts of the present case where the undisputed factual position is that not only any plea of the sale being invalid on the ground of Defendant No. 2 being a non -agriculturist had not been taken in the pleadings, there was no evidence led about it. No such question was involved in the trial. The Defendants could not have known at any stretch of imagination that any such controversy was involved in the trial. It was only in course of argument that such an argument was first time advanced on behalf of the counsel for the Plaintiff. Under the circumstances, I find myself in agreement with the learned Counsel for the Respondent that such an argument based on no pleadings or evidence should not have been allowed by the Courts below. However, even on merit, I find that the learned appellate Court was right in holding that there was nothing on record to show that the Defendant No. 2 was not an agriculturist. It was also correct in holding that the fact of having a tailoring shop did not go counter to the contention of the Defendant No. 2 that he was an agriculturist. This aspect of the matter has been discussed at length in a recent decision of this Court in Jitendra Kumar Chakravarty v. Shanti Das, 1990 (2) GLJ 172 :, (1991) 1 GLR 19. In that case it was held that cultivation by himself is not necessary to bring a person within the definition of agriculturist as given in Clause (3) of Section 3 of the Act. "Personal cultivation" has been specifically defined in Clause (10) of the said section to mean "cultivation by the person himself or by the hived labourers", As such a person who had a tailoring shop can still be an agriculturist within the meaning of Section 3 of the Act. In the instant case the learned lower appellate Court on proper consideration of the (sic) was correct in arriving at a finding that the Defendant No. 2 (sic) an agriculturist and that the sale of the land in question to him was not hit by Section 8 of the Act.