(1.) In this case Defendant 1 has claimed the status of an agriculturist which if proved would necessitate the trial of this suit under the provisions of the Agriculturists' Relief Act. The following two issues were struck in this connection :
(2.) DOES the Defendant come within the definition of an agriculturist as defined in the A.R.A. of 1983? O.P. on Defendant: (2) In case issue No. 1 is proved in favour of the Defendant does it take away the suit from the jurisdiction of this Court? O.P. on Defendant. To prove these two issues the Defendant has produced four witnesses, by name, Prem Nath, Mohd. Maqbul, Qadir Khan and Ghulam Nabi. He has also appeared as his own witness. Pt. Prem Nath has stated that Defendant 1 is dependent for his living on his agricultural income and pension. He does not know what is the amount of his pension. He has added that 8 or 10 years ago Pandit Kailas Kaul (Defendant 1) has mortgaged with possession his agricultural land and that the mortgagee received all the benefits from the land. This witness does not know as to what is the income which accrues to Kailas Kaul from his lands. Mohd, Maqbul Patwari has stated that there are about 76 Kanals & 7 Marias of land entered in the name of Kailas Kaul which the witness says have been mortgaged by him with one Samsar Chand who received benefits from this land and also pays the land revenue. This witness also does not know the actual income which this land yields. Qadir Khan Defendant's witness says that Kailash Kaul possessed about 80 Kanals of land which he has sold to somebody and has spent the sale consideration thereof for his maintenance. Ghulam Nabi another witness of the Defendant says (sic) Kailash Kaul. was dependent for his living upon his agricultural income previously, but now he has mortgaged this land with one Samsar Chand. He also says that Samsar Chand receives all the benefits from the land. The Defendant in his statement has admitted that he has mortgaged his agricultural land with Samsar Chand in lieu of 2000/ - which he adds is being spent by him for and his wife's maintenance. He has denied that he has anything to do with his sons, though he admits that they have a joint ration ticket. The Plaintiff has produced Samsar Chand mortgagee. He says that the present mortgage was executed by Kailas Kaul Defendant as he required money for trade purposes. He also says that Kailas Kaul had a cloth shop once and later on he was doing contract business which he has now given up 4 or 5 years ago.
(3.) THE Defendant's learned Counsel drew my attention to the explanation to Section 2 of the A.R.A. Basing his argument upon this explanation, he submitted that an agriculturist will always remain an agriculturist even though temporarily he ceased to earn his livelihood by such labour or pursuits, provided he had no intention of changing his status. The word "temporarily" is very significant in this section. "Temporarily" would in no case mean years, as in the present case. Apart from, this, we have got to see as to whether the defendant was an agriculturist on the day when he mortgaged his lands with Sansar Chand. The mortgage in favour of Sansar Chand was executed in the year 1998, as stated by the Defendant himself. The Defendant had got to prove that on the date when he executed the mortgage deed, he was an agriculturist. According to the Patwari, the Chakla rate in the village where the mortgaged land is situate, is one Khirwar and 5 traks of Shali per Khirwar. Out of this 10 1/2 traks would be the share of the Defendant. Even though a uniform Chakla rate be presumed for all types of land -the Defendant's land consists of Abi awal 51 Kanals, Abi dom 15 Kanals and Abi Som 2 Kanals -the gross share of the Defendant from the produce of the land would be nearly about 42 Khirwars, the cost of which according to the rate prevailing then would be about Rs. 210/ - (at the rate of Rs. 5/ - per Khirwar which was then the prevailing rate in Srinagar in the villages it was much less). Out of this according to statement of the Patwari, the Defendant had to pay about Rs. 60/ -as land revenue. Deducting this amount of land revenue from Rs. 210/ - the net income that would accrue to the Defendant would be Rs. 150/ -, which would work out at Rs. 12/8/ - per month. As against this, the Defendant was drawing a pension of Rs. 27/8/ - per month. From this it would (sic) clear that the Defendant was not dependant for his livelihood wholly or principally upon agriculture.