1. This is an appeal against the judgment and decree of the learned Assistant Judge. Ahmedabad (Rural) at Narol allowing civil appeal No. 70 of 1964 and setting aside the order passed by the learned Joint Civil Judge. Junior Division Dholka.
2. The facts giving rise to this appeal are simple. The present respondent had filed regular darkhast No. 71 of 1963 against the present appellant in the court of the learned Joint Civil Judge. Junior Division. Dholka for executing a decree passed, against him and his mother who had since died in regular civil suit No. 131 of 1949 for recovering decretal dues amounting to Rs. 7929-81 paise by attachment and sale of immovable properties belonging to the deceased father of the judgment - debtor. The attached properties consisted of a house situated at Bavla, a small town in Dholka taluka, and two fields at village Sindhrej in the said taluka. The present appellant by his reply Ex. 15 opposed the said application and contended inter alia that the present respondent had applied for rateable distribution in a previous darkhast wherein it was held that the present appellant was an agriculturist and that the house in dispute was exempt from attachment under Section 60 (10, proviso (c) of the Code of Civil Procedure and that the appeal filed against that order was also dismissed. He therefore, contended that the present execution darkhast would be barred by res judicata. He also contended that the house in dispute was used for keeping bullocks and implements of husbandry, storing fodder and other agricultural purposes and that he had no other occupation save agriculture. The learned Civil Judge held that the house in dispute was exempt from attachment under proviso (c) of Section 60(1) of the Code of Civil Procedure. He held that there was no change in the status of the present appellant and therefore, he held that the order passed in the previous darkhast operated as a bar to the present respondent to agitate the same dispute again. Against the said order, and appeal was preferred in the district court and the learned Assistant Judge set aside the order passed by the learned Joint Civil Judge. Against the said order of the learned Assistant Judge, the original judgment debtor has preferred the present appeal to this court.
3. Mr. R. N. Shah, learned Advocate for the appellant submitted that the learned Assistant Judge had erred in holding that the present appellant was not an agriculturist within the meaning of sub-clauses (b) and (c) of proviso to Section 60 of the Code of Civil Procedure. He urged that in order to come within the definition of 'agriculturist' it was not necessary that the appellant should be cultivating the land personally and it would be sufficient to bring him within the definition of 'agriculturist' to show that his livelihood depended mainly on the income derived from the agriculture. He urged that once the house was said to be in occupation of an agriculturist, it would be exempt from attachment and sale under a decree of the court. Lastly he urged that the present execution application would be barred by the principles of res judicata as in the previous application, it was held that the present appellant was an agriculturist and that the house was exempt from attachment and sale. In order to appreciate the contentions raised by the learned. Advocate for the appellant it would be worth while to consider the proved facts of this case. Admittedly, the present appellant was a minor at the time the darkhast in question was filed against him by the judgment creditor. At the time of the first darkhast, the present appellant was represented by his mother who acted as his guardian and was also impleaded as a party as a legal representative of the original judgment debtor Somabhai. The mother died after the decree was passed. The present darkhast therefore was filed against the present appellant. The learned Judge below has observed:--
'There is no doubt as stated above that the house belongs to the J.D. there is also no dispute that agriculture is the only source of maintenance to the J.D. and Bavamiya Ex.38 has admitted that the J.D. has no other occupation except agriculture. He has further admitted that J.D.'s maternal uncle Ranchhodbhai gets the lands cultivated from Salajada.'
Thus, according to the learned Judge below the present appellant had no other occupation except agriculture and that his maternal uncle Ranchhodbhai was getting his land cultivated from Salajada, after the death of his mother. In this connection, the deposition of his maternal uncle Ranchhodbhai Vrajlal who was appointed as guardian-ad-litem is very material. According to him, for the last two years, he was managing the property of the judgment-debtor after the death of his mother. He stated that his nephew that is the present appellant was studying and he was getting his land cultivated by engaging servants. He also stated that he was staying at Bavla for most of the year and his mother's sister Lilavati looked after him there. According to him, the appellant had only one house at Bavla and that he had no house anywhere else for agricultural purpose. As against that, the judgment creditor examined Bapalal Keshavlal Pandya. Miya Mahamad Siddikbhai. Baldevbhai Chunilal and Bavamiya Chhadumiya from whose evidence it was established that the present appellant was not residing at his house situated in Bavla, but he was residing with his maternal uncle at Salajada and that he was going to Bavla every day on a cycle for the purpose of attending the school. It has also come out that village Sindhrej is about 8 miles from Bavla. It has also come out that the house in question was given to tenants viz. Lilavatiben Kantilal and Sudhar Kalidas Gopaldas. From the evidence read as a whole therefore, it is clearly established that after the death of the mother the appellant who is a minor is residing with his maternal uncle at Sindhrej and that his lands are being cultivated through servants by his maternal uncle from Salarada. The maternal uncle has admitted in the evidence that he looks after the lands of the appellant and that the agricultural implements are kept at his house, from where they are taken by the servants. Thus, it has clearly come out from the evidence of his maternal uncle that the house of the appellant at Bavia was not used for the purpose of agriculture at the relevant time and that the agricultural implements were stored at his own house at Sindhrej. The learned appellate Judge has held that the present appellant was not an agriculturist within the term of Clauses (b) and (c) of the proviso to Section 60 of the Code of Civil Procedure and that as the suit house though of the ownership of the appellant was not used for agricultural purposes, it was not exempt from attachment and sale. Mr.Shah, learned Advocate for the appellant has assailed both these findings of the learned appellate Judge. According to Mr. Shah, it is not necessary for the appellant to prove, in order to bring him within the definition of 'agriculturist' under Section 60 of the Code of Civil Procedure, that he should cultivate that land personally, that he should cultivate the land personally. He urged that the appellant was a minor and it was but natural that during his minority, the lands would be cultivated through others. But when it was clearly brought out that his livelihood mainly depended from the income of the agriculture, there was no reason why the appellant should not be considered as an agriculturist, within the meaning of Clauses (b) and (c) of the proviso to Section 60 of the Code of Civil Procedure. In support of his say, he referred to the case of Appasaheb Tuljaram Desai v. Bhalchandra Vithalrao Thube. : 2SCR163 , wherein it was observed--
'It is to be noticed that under C1. (B) the land which an agriculturist tills is not exempted from attachment. The agricultural produce of the land is exempted to the extent as notified in the official gazette issued under Section 61 of the Code On a fair reading of the provisions of C1., (b), that which is saved to an agriculturist are his implements with which he tills the soil and such cattle and seed grain which, in the opinion of the court, are necessary for him to use in order to enable him to maintain himself. The provisions of C1., (b) in the case of an agriculturist, therefore, suggest a person who tills the soil in order to maintain himself'.
It was further observed --
'Under C1., (c), houses 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 exempted, from attachment. The word 'agriculturist' in this clause must carry the same meaning as the word 'agriculturist' in C1., (b) and the house must be occupied by him as such. The object of the exemption in C1., (c) apparently is that an agriculturist should not be left without a roof over his head. In other words, the Legislature intended by Cls., (b) and (c) to prevent an agriculturist becoming destitute and homeless. It was, however, argued on behalf of the appellants that there are no restrictive words in C1, (c). So long as it was a house belonging to an agriculturist and occupied by him, it was exempted from attachment no matter what other income that agriculture was earned by him. The Wada in question was clearly occupied by the appellants for the purpose of tilling the land of the home farm and for storing the produce thereof, the implements of husbandry and tethering of cattle employed in cultivating the land. It seems to us, on the evidence of the appellant's own witness, that they do not themselves till the land of the home farm which is done by a large number of labourers employed by them. Tuljaramrao did not himself cultivate the land. He merely supervised the work of cultivation by the labourers. The witness, however, did state that sometimes Appasaheb and his brother worked personally in the fields. This is a vague statement which does not necessarily mean that they did any act of cultivation themselves. The Wada in question is a big structure where the appellants reside but if they are not agriculturists within the meaning of that word in Section 60, the Wada cannot be exempted from attachment. It seems to us that even if it is not necessary that a person must till the land with his own hands to come within the meaning of the word 'agriculturist' he must at least show that he was really dependent for his living on tilling the soil and was unable to maintain himself otherwise. In the present case it is quite obvious that even if the appellants can be described as agriculturists in the widest sense of that term, they are not agriculturist who are really dependent for their maintenance on tilling the soil and that they are unable to maintain themselves otherwise.'
It may be noted that after making these observations, the Supreme Court upheld the decision of the Bombay High Court that the Wada in question was not Watan property and that it was not exempted from attachment by virtue of the provisions of Section 60 (1) of the Code. It will therefore be worthwhile to refer to the Bombay High court judgment in order to find out as to what view was taken by the High Court regarding the meaning of 'agriculturist' and house which was exempted from attachment under Clauses (b) and (c) of the proviso to Section 60 of the Code of Civil Procedure. In the case of Hanmantrao Annarao v. Dhruviral Pandurangrao, 49 Bom LR 867 = (AIR 1948 Bom 229), wherein, speaking for the Bench made the following observations:--
'Prima facie the houses which are intended to be exempted should be farm houses belonging to agriculturists and occupied by them as such agriculturists for the purposes of carrying on their agricultural operations. It is clear. I think, that if an agriculturist owns a house of residence far away from his agricultural fields. It would not be open to him to claim for such a house exemption from attachment and sale, because it could not be said that such a house is occupied by him as an agriculturist. I am therefore inclined to take the view that the word 'agriculturist' as used in Cls, (b) and (c) of the proviso to S. 60(1) denotes small holders who till the land and cultivate it, and cannot include large landed proprietors even though they may be tilling the land and cultivating it through their servants. The scheme of the proviso seems to suggest that the protection given by Cls., (B) and (c) should be continued to persons who are personally engaged in tilling and cultivating the land and whose livelihood depends upon the proceeds derived from such tillage and cultivation of the soil'. From these observations, it is clear that in order to bring a person within the meaning of 'agriculturist', and to claim exemption from attachment and sale under Clause (b) and (c), it should be proved that he was tilling the land and that his main income was derived from agricultural pursuit and that the house regarding which a claim was put for exemption under Clause (c), was used and was in occupation of the agriculturist for the purpose of his agricultural operations. Merely because a person owned lands which were cultivated through servants, he cannot automatically be termed as agriculturist against the meaning of sub-clauses (b) and (c) of the proviso to Section 60 of the Code of Civil Procedure. It must be proved that he was tilling the land personally or in some cases, through servants and that his main income was from agriculture. It must further be proved that the house in question was used for the purpose of agricultural pursuit. In the instant case, the evidence shows that the present appellant had about 60 bighas of land under personal cultivation and the rest of the land was given over to the rest of the land was given over to the tenants. However, as observed by the learned Assistant Judge the main income of the appellant was from the agricultural land. The appellant was a minor at the relevant time and therefore, he had to get his land cultivated through servants. Under the circumstances of this case. It cannot be said that the appellant was not an agriculturist within the meaning of Clauses (b) and (c) of the proviso to Section 60 of the Code of Civil Procedure. In order to hold him an agriculturist, it is not always necessary that he should cultivate the land personally with his own hands. But is held by the Bombay High Court, provisions of Clauses (b) and (c) are meant to protect interest of small holder and not big landed proprietors. Though this view is some-what modified by the observations of the Supreme Court referred to about that even though a person may not cultivate personally and get the land cultivated through servants, he may come within the meaning of agriculturist provided the depended mainly on the income from the agriculture. Taking into consideration the view of the Supreme Court, it may be held that the present appellant was an agriculturist. But the pertinent question which would arise is--whether the house in question was in his occupation as agriculturist and whether it was used by him for the purpose of agriculture. The evidence shows that the house is situated at Bavla which is 8 to 9 miles from the agricultural land of the appellant as stated by witness Bavamiya. According to the admission of the maternal uncle of the uncle of the appellant, Bavia is situated about 8 to 9 miles from the agricultural land. In any case it cannot be said that the house at Bavia was a farm house which was used for the purpose of doing agriculture at village Sindhurej where the lands were situated. Thus, as observed by Gajendragadkar, J.,
'if an agriculturist owns a house of residence far away from his agricultural fields, it would not be open to him to claim for such a house exemption from attachment and sale because it could not be said that such a house is occupied by him as an agriculturist'.
The house in question belonging to the appellant, at Bavla is a three storeyed house. The said house was not used by him as an agriculturist at the relevant time. According to the deposition of his maternal uncle, the appellant was residing with him at Sindhrej from where he was going to Bavla everyday in order to attend the school. His maternal uncle was looking after his land and all the agricultural implements were kept at his house at Sindhrej. Under the circumstances, it cannot be said that at the time of the execution application, the house of the appellant was used for the purpose of agriculture. Besides, as observed by Gajendragadkar, J., a house which was 8 miles away from his fields and which was under as residence it cannot be said to the in occupation of the appellant for the purpose of agriculture. In my opinion, therefore, the learned Assistant Judge was right in holding that the house in question was not exempted from attachment and sale.
4. Mr.Shah next urged that as in this previous Darkhast, filed by the present judgment-creditor it was held by the court that the appellant was the agriculturist and the house was exempted from attachment and sale, the said order would operate as res judicata and it is not open to the present judgment creditor to reagitate this question once again. In my opinion, there is no substance in the submission made by Mr.Shah. it may be noted that the court has to decide that status of a party existing at the particular moment. That status would always change according to the circumstances. At that particular moment, the mother was residing in the said house and was looking after her lands, on behalf of herself and the present appellant who was a minor. Under these circumstances, the court may have held that the mother was an agriculturist and the house was exempted from attachment and sale, the court does not seem to have looked at this question from the angle at which it is being dealt with now viz, whether the house which is at the distance of 6 to 8 miles from the agricultural land could be considered to be used for the purpose of agriculture. As observed by Gajendragadkar, J., such a house could not be said to be a house for agricultural purpose and that it would not be exempted from attachment and sale. In my opinion, therefore, whatever finding may have been made by the learned Judge in the execution application given earlier, would not operate as res judicata. Lastly, Mr.Shah urged that the question regarding status of the present appellant as an agriculturist and whether his house was liable to attachment and sale should have been referred to the revenue authority. In support of his case he referred to the case of Vasava Mohan Moti v. Indravadan Kuberadas, (1963) 4 Guj LR 387, wherein it was observed--
'Section 85 of the Bombay Tenancy and Agricultural Lands Act is not limited to proceedings between a landlord and a tenant only but is wide enough to cover any proceedings between any parties where any question is raised by a party which question is required by or under the Act to be settled, decided or death with by the authorities mentioned in that section'.
I failed to understand how this ruling will help the present appellant. There can be no quarrel that if the matter in issue was covered by any section of the Bombay Tenancy Act and that if the question was such which was required to be dealt or decided by the competent authority as mentioned in the Bombay Tenancy Act, the question has to be referred to that authority by the civil court. But in the instant case, Mr.Shah has been unable to show that there is any such question which was required to be death with or settled by the competent authority under the Tenancy Act. Therefore in my opinion, this ruling has no application to the facts of this case.
5. In the result the appeal fails and is dismissed. In view of the facts of this case, parties to bear their own costs.
6. Appeal dismissed.