1. The appellant in this case was a judgment-debtor in the lower Court. There is a decree for money against her, and in execution of it, her two houses were attached. She came to Court with the allegations that she was: an agriculturist and the houses were occupied by her and that therefore, these were exempt under Section 60, Clause (c) of the Civil Procedure Code from attachment. The decree-holder in his reply did not state at all what was her occupation, if the judgment-debtor was not an agriculturist. He simply stated that the judgment-debts were due and she was bound to pay. The learned Subordinate Judge examined evidence and came to the conclusion that the appellant had ceased to be an agriculturist inasmuch as she had sold her fixed rate tenancy in 1919.
2. In this Court it has bean urged that the evidence has been wrongly weighed by the lower Court and that it does establish that the appellant is an agriculturist.
3. It appears that the decree-holder himself was examined at a previous stage in this very litigation. This was on the 11th of November, 1922. It further appears that somebody else had laid claim to one of three houses originally attached, then the decree-holder stated the whole history of the residence of the appellant in the village Kanta. Ha said that the appellant was unhappy in her husband's house and came to live in her father's village Kanta. There she was given some land to live on, and her father built these houses for her. He also stated that the appellant owned two pairs of bullocks for cultivation. Besides this admission of the decree-holder, there is evidence of the appellant herself and some patwari's papers. Two patwaris were examined and they said that in their papers the appellant was still recorded as a fixed rate tenant of certain lands and lets a Shikmi tenant of three years standing of others. The appellant also summoned one Jageshar, who deposed that she had 18 or 20 bighas of land of her own and had taken so ma shikmi land from him on rant. But when the appellant was asked by the decree-holder if she knew Jageshar, she denied. Prom this fact an inference has boon drawn that the story of the Jagashar's sub-letting any land is untrue. I am unable to agree with this view. It is admitted that although the appellant belongs to an agricultural caste namely, Kurcni, she lives more or less in seclusion and her son looks after her cultivation. On evidence, I am satisfied that the only means of livelihood of appellant is agriculture and aha has no other means of livelihood.
4. The suggestion of the decree-holder that the appellant may be living on the charity of her son has neither been alleged nor proved. the evidence is all one way and should be accepted.
5. The exemption that is granted is based on the language of law and, if the case cornea within the language of the law, the exemption must be granted. The question is whether the appellant is an agriculturist and whether she occupies these houses. The Bombay High Court in the case of Devare Hegde v. Vaikunt Subbaya (1917) 41 Bom. 475, held that although a certain person had lost his agricultural land, he did not cease to be an agriculturist if he was cultivating soil for remuneration. As the appellant has got no other source of livelihood, as she did cultivate land and as she has still got some shikmi land, I think she must succeed, I would, therefore, allow the appeal sat aside the decree of the Court below and exempt houses from attachment.
6. I concur with considerable hesitation. The burden of proving that the case falls under Section 60, Civil Procedure Code lies on the objector. It is not for the decree-holder to prove what her occupation is. It is for her to show that she is an agriculturist. I do not like reversing the decree of the Court below on a question of fact when the evidence adduced by the objector that she still has cultivation has been found by the Court below to be false and that finding is not seriously challenged in this appeal. If the oral evidence is false the entries in the patwari papers can carry very little weight.
7. The only fact which induces me to agree to the decree proposed by my learned colleague is the admission of the zamindar made in answer to a previous objection. It may be that the statement was made for the purpose of the objection which was than pending, but this cannot be assumed and the decree-holder cannot complain if it is used as strong evidence against him.
8. If it were proved that the applicant had no cultivation at all her house would not be the house of an agriculturist within the meaning of Section 60(e), Civil Procedure Code merely because she had a fixed rate holding up to the year 1919, four years before the period to which the present objection relates.
9. We allow the appeal, set aside the decree of the Court below and dismiss the application of the decree-holder so far as it goes for the at attachment of the houses objected to. The appellant will have her costs in both the Courts. In this Court, having regard to the fact that the value of the houses attached is not much we assess the counsel's fee for the successful appellant at the sum of Rs. 20.