RAMCHANDRA ATMARAM KHANOLKAR Vs. TUKARAM NANA NIKTE

JUDGEMENT

(1.) Plaintiff is the transferee of a mortgage of certain immoveable properties situate at Brahmapuri in the Pandharpur taluka of the Sholapur District which was executed by defendant No. 1, as manager of a joint Hindu family, for Rs. 4,917-10-0, and has brought this suit against the defendants to enforce the mortgage security. Plaintiff prays (a) for a decree for the amount and the interest due thereon and the costs of the suit, (b) in default of payment, for sale of the mortgaged properties, and (c) for a personal decree in the event of a deficiency. Defendant No. 1 has put in his written statement contending that he is an agriculturist, and that the Court has no jurisdiction in respect of prayers (a) and (c) of the plaint. By an order dated March 18, 1931, the suit was ordered to be placed on board for trial of issues whether defendant No. 1 is an agriculturist within the meaning of Section 2(1) of the Dekkhan Agriculturists Relief Act. Section 2(7) provides that an agriculturist shall be taken to mean a person who by himself or by his servants or tenants earns his livelihood wholly or principally by agriculture within the limits of the district to which the Act applies, or who ordinarily engages personally in agricultural labour within those limits. Defendant No. 1 contends that he comes under both the branches of the definition, viz., that his principal income is from agricultural sources, and also that he ordinarily engages personally in agricultural labour. It is generally left to the Commissioner of this Court for taking Accounts to determine whether a person's income is derived principally from agricultural sources, and that is generally done by ascertaining whether his income from agricultural sources exceeds his income from non-agricultural sources for a period of three years before the date of the suit. But it is for the Court to determine whether the person who claims to be an agriculturist under the second branch of the definition is a person who ordinarily engages personally in agricultural labour within the limits of the district to which the Act applies.

(2.) The word "ordinarily" which occurs in Section 2(1) shows that it is only a bona fide agriculturist who comes within the definition, and as has been held by Mr. Justice Madgavkar in Sahoo V/s. Narayanshastri (1930) 33 Bom. L.R. 476, the word "ordinarily" there means regularly and habitually and not casually, whether it be for a longer or a smaller portion of the day. The word does not, however, mean solely. The definition does not cover the case of a person who leaves his usual avocation and only temporarily engages personally in agricultural labour. It was pointed out by West J. in Tulsidas Dhunjee V/s. Virbussapa (1880) I.L.R. 4 Bom. 624, that "the status of agriculturist and of trader is not to be taken up and laid aside momentarily in order to embarrass a creditor." At the same time it is plain that any person who satisfies the condition imposed by the latter portion of the definition is an agriculturist irrespective of the proportion which his strictly agricultural income may bear to any other income accruing to him, whatever that proportion may be. If he ordinarily engages personally in agricultural labour within the defined limits, he is an agriculturist within the second part of the statutory definition : see Bhikha V/s. Raichand (1912) 15 Bom. L.R. 68.

(3.) The onus of proof, however, is on the person who sets himself up as an agriculturist. Defendant No. 1 had three witnesses examined on commission. His cousin Ramchandra Dasrath, who was joint with him along with his own brother until a partition which took place in or about 1925 or 1926, was examined in Court before me. Defendant No. 1 himself also gave evidence. Defendant No. 1 stays at Pandharpur, and has a cloth shop there which he has been carrying on for the last twenty-three to twenty-four years. His son Namdev, defendant No. 2, has another shop also, but it is alleged by defendant No. 1 that defendant No. 2 is separate from him. The lands in question on which according to him he ordinarily engages personally in agricultural labour are two plots Nos. 99/1, 99/2, situate at Gopalpura, which is about one and a quarter to one and a half miles away from Pandharpur, and the area admeasures about twenty-six acres. These plots of land were mortgaged in or about 1920- 1921 to defendant No. 1 and his cousin Ramchandra by one Balu Babaji Pavar, and possession was given of the said lands to the mortgagees. It is alleged to be a self-redeeming mortgage given for sixteen years. In or about 1925-1926 defendant No. 1 separated from Ramchandra, and an arrangement was arrived at under which defendant No. 1 was to cultivate the lands for two years and Ramchandra for one year in rotation. It is in evidence that from about April 1929 till about March 1931, roughly, defendant No. 1 cultivated these lands, and it is his turn again to cultivate them since about March or April of this year. The work of cultivation is spread over a period of about eight months in the year beginning roughly from the month of Shravan and going up to Fagan, that is to say, from about August to March. During the remaining four months of the year no agricultural work is done. The work of agriculture consists of ploughing the land, harrowing it, sowing seeds, weeding the land, watching the crops grow, harvesting, then taking out the stalks of the crops from the land, cutting the stalks, making bundles of them and heaping them in circular form, then cutting off the ears of the corn from the stalks, and lastly thrashing out the corn from the ears and separating it from the chaff. Out of all this work defendant No. 1 does the work of weeding out superfluous plants from the land, watching the crops grow and protecting them from destruction by stray cattle, cutting the stalks, and making bundles of them, all by himself. During the three months of the harvesting, that is, during the months of Posh, Magh and Fagan, defendant No. 1 has also got to stay in the fields. It is not, however, clear whether he has got to stay there day and night, but it does not seem to be necessary for him to do so, considering that the place where he lives in Pandharpur is only about a mile or a mile and a half away from these lands. The work of weeding out superfluous grass, taking out the stalks from the land, and thrashing the corn from the ears is also done by defendant No. 1, but with the help of labourers engaged by him. The work of ploughing, harrowing and sewing is entirely done by engaging labourers. But even that work, according to defendant No. 1, is done under his supervision and instruction. The extracts from the Record of Rights for 1929-1931 show that defendant No. 1 worked personally either through or with the help of labourers. These extracts have not been officially translated, but I had the benefit of the interpretation by the Head Marathi Translator of this Court who said that the words contained in the extracts which were relied upon meant that the work was done by the defendant No. 1 personally either through or with the help of labourers. Out of the three witnesses examined on commission, one of them Hari Parasharam Patil, who is the officiating Police and Mulki Patil of the place for ten to twelve years, said that he owned lands quite adjacent to those of defendant No. 1. He, however, stated that defendant No. 1 had no bullocks nor agricultural implements of his own. The other witness is Digambar Eknath Thathe, the officiating Kulkarni of the place for about twenty years. These are, in my opinion, independent witnesses, and have substantially corroborated the evidence given by defendant No. 1 and Ramchandra in Court which I believe. They both say that they have personally seen defendant No. 1 work on the lands. There is the evidence of a third witness, Tatya Bhujanga, who also corroborates defendant No. 1 to some extent. He stated that he harrowed the lands during one season on hire from defendant No. 1. As against this evidence the only evidence on which the plaintiff relies is the evidence of one witness, Dattatraya Narayan Phukte, who stated in one place that it was not a fact that defendant No. 1 did agricultural work personally, and ended his cross-examination by saying that he did not actually know whether defendant No. 1 personally cultivated his lands at Gopalpura. These are inconsistent statements, and they do not in any way support the plaintiff.