TIRLOKI PRASAD Vs. KUNJ BEHARI LAL

JUDGEMENT

(1.) This is a second appeal from an order passed in first appeal by the learned District Judge of Meeruf in the course of insolvency proceedings. The appellant Tirloki Prasad and his brother ,Sri Ram, were adjudicated in solvents. The receiver seized a house No. 41 which is situated in the city of Meerut. The appellant Tirloki Prasad made an application that he was an agriculturist, that the house No. 41 was his residential house and that it was not subject to attachment under the provisions of Clause (c). Section 60, Civil P.C., and Sub-section (5), Section 28, Provincial Insolvency Act. The Court of first instance found that the appellant was not, in the true sense of the term, an agriculturist. and that Section 60, Civil P.C., Clause (c). did not apply to him. In appeal the learned District Judge found that the appellant was in a sense, an agriculturist; but he went on to say that, the house was subject to attachment, because it was not appurtenant to a holding and was not occupied by an agriculturist, as such.

(2.) In second appeal it has been contended that the statement of law which the learned District Judge made is not a correct statement and that a house if it is occupied by the agriculturist is not liable to attachment, even if it is not occupied by him as an agriculturist. It has also been contended that there is a finding of fact, which is binding on us, that the appellant is an agriculturist. We consider that the learned District Judge did not intend to find that the appellant was an agriculturist in the proper sense of the term as used in Clause (c), Section 60, Civil P.C. He has said: No doubt the objectors (that is, the appellant and his brother) were not primarily cultivators, but of the fact that they were cultivators, i.e., agriculturists in respect of these plots, there is no room for doubt or dispute now.

(3.) By the expression "of these plots" he is referring to the fact that the appellant and his brother were admittedly in possession of a piece of land just outside Meerut City which had an area of 2 bighas 13 biswas and which was a grove, part of which was from time to time cultivated. From the terms used by the learned District Judge we consider that he took it for granted that anybody who cultivated any land anywhere was an agriculturist. That is not the meaning which has been applied by the Code to the term "agriculturist" in Clause (c), Section 60, Civil P.C. We may refer to the case of Jamna Prasad V/s. Raghunath Prasad (1913) 35 All. 307. There it was said in respect of a dispute upon this question that: the question arises a3 to what is his main source of income and whether or not he is an agriculturist within the strict sense of the term and occupies the house as such.