KALI RAM Vs. THAKUR CHAND

JUDGEMENT

(1.) Petitioner Kali Ram obtained a money decree from the Court of the Subordinate Judge 1st Class, Kullu on June 30, 1973 against Thakur Chand, respondent No 1 In the execution proceedings, Thakur Chand by way of execution claimed the benefit of the provisions of the Himachal Pradesh Relief of Agricultural Indebtedness Act, 1976 (in short "Act"). The learned Senior Sub -Judge, Kullu made a reference to Tehsildar, Kullu asking for a report which was furnished by the Tehsildar vide order dated May 30, 1984. He held Thakur Chand to be a marginal farmer within the ambit of the Act and pursuant to the aforesaid report, the learned Senior Sub -Judge, Kullu, vide his order dated May 30, 1984, directed that the J. D. in question would be deemed to have been discharged of his liability. Aggrieved from the aforesaid proceedings, the present C.M.P. has been preferred.

(2.) Section 3 of the Act lays down the conditions under which a debt shall be deemed to be wholly discharged on the commencement of the Act. The debtor has been defined in section 2 (1) (g) as meaning a marginal farmer, a landless agricultural labourer or a rural artisan who is in debt and it has been provided in the said definition that the word debtor would not include a small farmer. Now, marginal farmer has been defined in clause (k) of section 2 (1) of the Act. It means an agriculturist who earns his livelihood mainly by agriculture and who holds land not exceeding one hectare of unirrigated or half hectare of irrigated land. The plain language of section 3 makes it abundantly clear that in order to take benefit of the provisions contained therein, a person has to be declared as a debtor on the appointed day which as contained in section 2 (1) (b) means the 13th November, 1975. The main criticism directed against the proceedings referred to above before the Tehsildar, Kullu and the Senior Sub -Judge, Kullu is that there is no finding at all as to whether Thakur Chand, J. D. was a marginal farmer and a debtor on the aforesaid appointed day. It is only when he is adjudged as such on the appointed day that he would be deemed to be wholly discharged of his liability under the decree in question. I am fortified in the above question by the law already laid down by this Court in Prem Dass v. Kallu, ILR 1981 H. P. 161. Thus, what has been stated above, is a well -settled proposition of law and there is no manner of doubt that the Tehsildar, Kullu has mis -directed himself in holding Thakur Chand J. D. as a marginal farmer totally oblivious of the appointed day. Similarly, the learned Senior Sub -Judge, Kullu was not justified in law in accepting the report of the Tehsildar, Kullu which was incomplete and legally invalid.

(3.) In the above view of the matter, this petition is accepted and the impugned order dt May 30, 1984 of the learned Senior Sub -Judge, Kullu set aside with the directions that the Execution application would be restored against its original number and date and he would make a fresh reference to the Tehsildar, Kullu under the provisions of the Act enclosing therewith a copy of this order. The Tehsildar, Kullu would afford opportunity to both the parties to adduce such evidence as they may desire and thereafter give his report in accordance with the provisions of the Act to the Court concerned.