SHEO PRASAD Vs. KALKA PRASAD DHAWAN

JUDGEMENT

(1.) This is an appeal by Sheo Prasad and hia three minor sons and is directed against an order of the District Judge of Cawnpore rejecting an application filed by the appellants under Secs.5 and 30, Agriculturists Relief Act, 27 of 1934. The application was made under the following circumstances : On 10 November 1930 Sheo Prasad on his own behalf and on behalf of his minor sons executed a simple mortgage deed in favour of Kalka Prasad, respondent, for a sum of Rs. 13,000. The parties to the mortgage deed appointed two pleaders as arbitrators to determine the amount to which the respondent was entitled on the basis of the mortgage. This reference to arbitration was without the intervention of the Court. Before the arbitrators the parties entered into a compromise and the arbitrators decided the dispute in accordance with that compromise. They passed a decree in favour of Kalka Prasad for a sum of Rs. 13,000 together with interest at a certain rate from the date of the mortgage. This decree was, on an application by Kalka Prasad, made a rule of the Court. Kalka Prasad then, on 8 May 1937, filed an application for execution of the said decree. The amount claimed by him on account of principal and interest was Rs. 20,434-12-6 and he prayed that the said amount be realized by sale of the mortgaged property. The appellants then filed an application under Secs.5 and 30 Agriculturists Relief Act, praying for reduction of interest and for the decretal amount being made payable by easy instalments. The appellants claimed to be agriculturists by virtue of the provisions of Section 2(2)(g) of the Act, which provides that a person holding land free of rent, the area of which does not exceed 80 acres, is an agriculturist for the purposes of the Act. Kalka Prasad, respondent, contended that the appellants did not hold "land" within the meaning of the Act, and, as such were not entitled to the benefit of the provisions of the Act. The learned Judge accepted this contention of the decree-holder and rejected the application filed by the appellants. The appeal in this Court was wrongly filed as an execution first appeal. It is really a first appeal from order under the Agriculturists Relief Act.

(2.) It is common ground that the appellants hold an area of 7 biswas 2 biswansis which is rent free. The appellants contention was that that area was land" within the meaning of the Act, whereas Kalka Prasad's contention was that the area did not constitute "land" and was mere "abadi". By Section 2(9) of the Act, it is provided that "land" shall have the same meaning as in the Agra Tenancy Act, 1926. In the Tenancy Act "land" is defined as meaning land which is let or held for agricultural purposes, or as grove-land or for pasturage...but does not include land for the time being occupied by dwelling houses . or appurtenant thereto.

(3.) The area held by the appellants was shown as grove in the settlement of 1283 Fasli. In the next settlement of 1311 Fasli again the area was recorded as a grove. But in the last settlement which took place in 1338 Fasli, 1 biswa 15 biswansis out of the total area of 7 biswas 2 biswansis was recorded as abadi and the rest of the area was recorded as a grove. The same entry was repeated in the khataunis for 1343 and 1344 Fasli. But in the khasra of 1343 and 1345 the whole of the area was recorded as abadi. As the dispute between the parties could not be satisfactorily disposed of without ascertaining the nature of the property held by the appellants the learned District Judge appointed an Amin to prepare a map and to submit a report after local inspection. The Amin prepared a map and submitted a report to which no objection was taken by either party. It appears from the map and the report that the area held by the appellants is a walled compound within which there is a bungalow and some outhouses. In the compound there are two old trees and a small vegetable garden. In short, the property presents the appearance of a bungalow and compound in a residential area. This com. pound is either within the municipal limits of Cawnpore or within the Juhi Notified Area which is adjacent to the city of Cawnpore. The question, therefore, arises whether this area can be held to be "land" within the meaning of Section 2(2)(g), Agriculturists Relief Act. In accordance with the definition of "land" in the Tenancy Act, an area which is for the time being occupied by dwelling-houses or is appurtenant thereto is not land. As the compound held by the appellants is occupied by a residential house and outhouses for servants and the open space therein is appurtenant to the residential house the compound cannot he held to be "land" within the meaning of the Tenancy Act and is, therefore, not land within the meaning of Section 2(2)(g), Agriculturists Relief Act. The appellants could not, therefore, be held to be agriculturists, and, as such, the application was rightly rejected by the learned District Judge. The appeal accordingly fails and is dismissed with costs.