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Channu Singh Vs. Khem Karan - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1235 of 1955
Judge
Reported inAIR1961All566
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60(1)
AppellantChannu Singh
RespondentKhem Karan
Appellant AdvocateHari Swarup, Adv.
Respondent AdvocateA.P. Gupta, Adv.
DispositionAppeal dismissed
Excerpt:
civil - possession of building - section 60 (1) proviso, clause (c) of code of civil procedure, 1908 - person owned a building which is in dilapidated condition - cannot be said to be in occupation when such building is not in his actual physical possession - such building was neither used by him previously for agricultural purposes nor occupied by him - exemption of clause (c) not available. - - pandurang and others, (air 1928 nag 23) relied upon by the learned counsel for the appellant which is clearly inapplicable to the present facts cannot help him......and dismissed the appeal.3. the judgment-debtor then came to this court and his contention is that actual physical possession of the building by the judgment-debtor is not necessary for claiming exemption from attachment and sale under clause (c) aforesaid. under this clause house and other buildings with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment belonging to an agriculturist and occupied by him are exempt from attachment and sale in a decree.the exemption can be asked by an agriculturist who must further show that the building is occupied by him. as a matter of fact, it must further be established that what is said to be exempt from attachment and sale is a building. in the instant case the courts below have held.....
Judgment:

J.K. Tandon, J.

1. Two questions have been raised in the grounds of appeal in this second appeal. One is that the word 'occupation' used in Section 60 C. P. C. does not necessarily require actual physical Possession by the judgment-debtor but a case of constructive pas-session by him will also be covered. The second point is about limitation which however has not been urged at the hearing.

2. The decree-holder has attached a building (which has been found by the two courts below to be in a dilapidated condition) in execution of his decree against the judgment-debtor appellant. The latter thereupon came forward with an objection that this building as it has been called, was a cattle shed, that he was an agriculturist and that it was exempt from attachment and sale under Clause (c) or the first proviso to Sub-section (1) of Section 60.

The trial court rejected this objection as it came to the conclusion that the appellant was possessed of another building which he was using as his Gher while the particular building in dispute was in a dilapidated condition and was not occupied as such. The lower appellate court also came to the same conclusion and dismissed the appeal.

3. The judgment-debtor then came to this Court and his contention is that actual physical possession of the building by the judgment-debtor is not necessary for claiming exemption from attachment and sale under Clause (c) aforesaid. Under this clause house and other buildings with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment belonging to an agriculturist and Occupied by him are exempt from attachment and sale in a decree.

The exemption can be asked by an agriculturist who must further show that the building is occupied by him. As a matter of fact, it must further be established that what is said to be exempt from attachment and sale is a building. In the instant case the courts below have held that the cattle-shed is in a dilapidated condition. They have also found that the appellant actually owns and occupies another cattle-shed where all his agricultural implements and bullocks etc., are kept. In other words they have held that the particular property is not a building as such, nor it is occupied nor used for the purposes contemplated by Clause (c).

4. The expression 'occupied by him' used in Clause (c) means something more than mere possession which can be both constructive and actual. The idea of actual physical possession is implicit in the expression 'occupation', and what is further implicit in Clause (c) is that the occupation of the building should be for agricultural Purpose.

5. Both these conditions are wanting in the present case. Since the so-called building is in j a dilapidated condition and is not in actual physical possession of the appellant he cannot be said to be in its occupation. Further he has a cattle-shedindependently of this building which he has recently purchased from a co-judgment-debtor. The disputed Gher was never in his use previously for the purposes of agriculture nor is Presently occupied by him for any such purpose. The case of Anand Rao v. Pandurang and others, (AIR 1928 Nag 23) relied upon by the learned counsel for the appellant which is clearly inapplicable to the present facts cannot help him.

In the above case the house in question hadtemporarily fallen down but was otherwise in theoccupation of the judgment-debtor before it felldown. The learned Judge rightly held in view ofthat circumstance that the temporary lull in theactual physical possession was immaterial. There-fore, agreeing with the two courts below I holdthat the objection of judgment-debtor appellant hasbeen rightly dismissed. The appeal is dismissed withcosts. The stay order is discharged.


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