ZIAUL RAHMAN Vs. MTGANGA DEI

JUDGEMENT

(1.) This is a first appeal by defendants 1 to 4 out of six defendants. The suit was brought by Mt. Ganga Dei, widow of Shankar Lal, as the sole plaintiff for enforcement of a hypothecation bond dated 25 November 1927, executed by Dr. Gul Ahmad, father of the six defendants, of whom three are sons and three are daughters. The bond was for Rs. 15,000 sat 13 annas per cent, per mensem compound interest with six monthly rests. The property mortgaged consisted of house property in the city of Meerut. Dr. Gul Ahmad is dead the lower Court decreed the suit in lull for the plaintiff.

(2.) The main point taken by the appellant-defendants is that they are agriculturists and are on titled to the benefits of Secs.5 and 30, U.P. Agriculturists Relief Act. The Section 5 to which they refer is not correct and Section 3 is intended. This is the main argument in the appeal before us. In Section 3 there is provision for the Court to allow instalments in passing a decree, and in Section 30 there is provision for reduction of the interest on a loan to certain rates in the Schedule. The claim of the appellants is that their father Dr. Gul Ahmad and the appellants both come under the definition of an agriculturist in Section 2(2)(f) of the Act as persons who pay rent for agricultural land not exceeding Rupees 500 per annum. Under Section 8(1) of the Act it is provided as follows: No person shall be deemed to be an agriculturist for the purposes of this Chapter unless he was an agriculturist both at the time of the advance of the loan as well as at the date of the suit.

(3.) It is necessary therefore for the defendants to prove two things : (1) that Dr. Gul Ahmad was an agriculturist on 25 November 1927, the date of execution of the hypothecation bond; (2) that the defendants were agriculturists at the date of the suit on 18 July 1936. Evidence was produced on both points by the defendants and the evidence has not been believed by the Court below. The evidence has been laid before us by learned Counsel for the appellants. In regard to Dr. Gul Ahmad it is admitted by D.W. Khalil Ahmad, on page 7, line 29 that Dr. Gul Ahmad was a dentist in Meerut. It is alleged by this witness that he had some zamindari near the Delhi Gate of Meerut and a grove and that he used to carry on cultivation of khudkasht and had ploughs and cattle. D.W. Jagannath, on p. 6 states that he has been the patwari of Meerut which is the agricultural village in question for the last 13 years before his deposition in 1936 and that would take him to 1923 and therefore cover the year in question of the execution of the document in November 1927, which was the Fasli year 1335. Jagannath states that Dr. Gul Ahmad used to cultivate land through his labourers. He does not confirm the statement of Khalil Ahmad that Dr. Gul Ahmad was a zamindar or had khudkasht. On the top of p. 7 the patwari says that he cannot give the numbers of the plots which Dr. Gul Ahmad used to get sown by his labourers, nor can he give the year when this was done. The patwari says that the plots in question were outside the Delhi Gate of Meerut. A list of zamindars in this qasba Meerut is printed on pages 23 and 24 but it does not give the members of this family as holding any zamindari share. For Dr. Gul Ahmad reliance was placed by learned Counsel on three documents. On page 25 there is an extract of the khasra of qasba Meerut for 1334-F (wrongly printed as 1335-P). This shows three numbers of which khasra No. 1321, area 1 bigha 19 biswas was sown with fodder (chari juar) and the tenant in chief was Azizul Haq, the sub-tenant was Abdur Eahman Sheikh. Both of these persons were entered "as heretofore," that is they had been previous tenants. In the column of remarks there is the following entry: Gul Ahmad, son of Muhammad Bakhsh Sheikh of the village under-sub- tenant on a rent of Rs. 15 a year.