BIRDA Vs. SANWAL CHAND & ORS.

JUDGEMENT

(1.) This revision-petition is directed against the order dated May 14, 1990, passed by the Munsif and Judicial Magistrate, First Class, Sanchore, by which the learned Munsif rejected the objections filed by the judgment-debtor and directed that the decretal amount can be recovered from the judgment-debtor only to the extent he inherited the property of his father i.e., 30 Bigha 15 Biswas of land.

(2.) Decree-holders Sanwal Chand and others, on April 9, 1984, filed an application for the execution of the decree in the Court of the Munsif and Judicial Magistrate, First Class, Sanchore. The judgment-debtor Birda contested the application and filed objections. It was stated in the application that he is the marginal farmer and it is a year of drought and the execution of the decree may be suspended and some time may be granted to him for filing a certificate that he is a marginal farmer. He thereafter filed the certificate issued by the Tehsildar (Land Records), Sanchore. It was certified by the Tehsildar that Birda S/o. Dharma is a marginal farmer as defined under the Rajasthan Scheduled Debtors Liquidation of Debts Act, 1976 (hereinafter referred as 'the Act'). The decree-holders, in support of their case, examined DHW 1 Sanwal Chand, DHW 2 Bhanwar Lal and DHW 3 Bhagirath. The judgment-debtor, in support of his case, examined himself as JDW 1. The learned Munsif, after considering the evidence produced by both the parties on record, rejected the objection filed by the judgment-debtor and ordered for the recovery of the amount in the execution of the decree only to the extent of the value of the property which he inherited from his father. It is against this order that the present revision-petition has been filed by the plaintiff.

(3.) Heard learned counsel for the parties. The learned counsel for the petitioner contended that the judgment-debtor filed the certificate issued by the competent authority showing the petitioner as the marginal farmer under the Act and, therefore, the presumption should have been drawn in his favour that he is a scheduled debtor and the burden of proving to the contrary shall lie on the creditor, while in the present case the learned lower Court has not drawn such presumption and placed the burden on the petitioner to show that he is a scheduled debtor. The next contention raised by the learned counsel for the petitioner is that while deciding the question of the execution of the decree, the learned lower Court should have considered the case of the petitioner that he is a scheduled debtor and not the case of the petitioner's father because the decree is being executed against the petitioner. The next contention raised by the learned counsel for the petitioner is that the learned lower Court has misread the evidence on record and arrived at a wrong finding. It was also argued by the learned counsel for the petitioner that according to Sec. 50 of the Code of Civil Procedure, the legal representatives of the deceased are liable only to the extent of the property of the deceased which has come to their hand and not beyond that. Lastly, it is contended by the learned counsel for the petitioner that in view of the provisions of Sec. 37 of the Rajasthan Tenancy Act, the right of a tenant in agricultural holding is not liable to be seized, attached or sold by process of any civil Court and the learned lower Court committed an error in directing for the execution of the decree against the agricultural land of the petitioner. The learned counsel for the decree-holders, on the other hand, has supported the judgment passed by the learned lower Court. I have considered the rival submissions made by the learned counsel for the parties. The first point, which requires consideration is whether the learned Munsif was justified in not treating the petitioner as the marginal farmer and what will be the effect of the provisions of Sections 4 and 6 in the case of the petitioner? It is not in dispute, as is clear from the evidence produced by both the parties that the petitioner inherited 30 Bighas 15 Biswas of land from his father. 25 Bighas 10 Biswas of land is in village Jajusan while 5 Bighas 5 Biswas land is situated in village Maidha. This stands proved from the evidence of the Patwari Bhanwar Lal DHW 2 and Bhagirath DHW 3. DHW 2 Bhanwar Lal, in his statement, has stated that he is doing the additional work of Patwar Circle Janwi and village Maidha is situated in this Patwar Circle. He has stated that in Khasra No. 140, 32 Bighas 13 Biswas of land has been shown in the name of Dharma. In Khasra No. 216, 7 Bighas 9 Biswas of the land and in Khasra No. 226, 12 Bighas 8 Biswas of land have been shown in the name of Dharma's two sons, viz., Birda and Jag Singh and 10-1/2 Bighas of land comes to the share of both these brothers. Thus, 5 Bighas 5 Biswas of land in village Maidha, according to this witness, comes to the share of Birda (petitioner). According to DHW 3 Bhagirath, Patwari of Patwar Circle, Aadetar, in which the Patwar circle of village Jajusan falls, has stated that 25 Bighas 11 Biswas of land in this Patwar Circle came to the share of the petitioner Birda. Even the petitioner himself filed a certificate issued by the Tahsildar (Land Records), Sanchore, to show that he is a marginal farmer, in which the land which came to his share in village Jajusan, has been shown as 25 Bighas 11 Biswas. The presumption, which could be drawn under Sec. 6 of the Act is not an unrebuttable presumption but it can be rebutted by the evidence. Even the presumption, as suggested by the petitioner that he is a scheduled debtor, should be drawn in his favour after he has produced the certificate in his favour under Sec. 5. The provisions of Sec. 6 are only to the extent that when once the certificate issued in favour of a particular person under Sec. 5 is produced then the Civil Court shall presume that the debtor is a scheduled debtor and the burden to the contrary shall lie on the creditor. According to Sec. 6, it is only the shifting of the burden and the creditor has to prove that the debtor is not a scheduled debtor. From the evidence produced by the decree-holder, as discussed by me above, as well as the appreciation of the evidence made by the learned lower Court, the non-petitioners/decree-holders have discharged their burden and clearly proved that the judgment-debtor is not a marginal farmer as he is having the land in excess of the land as provided in the definition of "Marginal Farmer" in Sec. 2(f) of the Act. According to Sec. 2(f) of the Act, a marginal farmer means an agriculturist who holds land as a Khatedar and cultivates it personally. One Hectare of land is equivalent to 2.471 acres. From the evidence produced by the decree-holder, it has come on record that the petitioner inherited 30 Bighas of Barani land which is much in excess of the land and therefore the petitioner cannot be said to be a marginal farmer. The authorities cited by the learned counsel for the petitioner: Mohan Lal Vs. Jethmal, 1978 W.L.N.(UC) 381 and Ahmed Bux Vs. M/s. Bhimraj Modi Lal, 1985 R.L.W. 672 thus, do not help the petitioner as the non-petitioner/decree-holders have discharged their burden and proved from the evidence on record that the petitioner does not fall within the definition of the "scheduled debtor".