P L D 1966 (W (PLP)

(2) Is the judgment‑debtor an agriculturist, and what is its effect? After recording the evidence adduced by the parties the executing Court held that besides the 1tOLIse in question the judgment‑debtor owned two other houses, that the judgment‑debtor has failed to prove that he is a "debtor" as defined in section? (c) of the West Pakistan Relief of Indebtedness Ordinance (XV) of 1960 and that section 7 of that Ordinance was nor applicable to his case, and consequently the houses belonging, to the judgment debtor, including the one in dispute, were liable to attachment and sale in execution of the decree in suit. As regards the land the trial Court has found that out of the land under attachment only Khasras Nos. 6745/3969, 3970/2073 and 3560/2079 situated in the estate of Rawalpindi, Tehsil and District Rawalpindi, are hit by the provisions of section 16 of the Punjab Alienation of Land Act (XIII of 1900) and are consequently exempt from sale in the execution of the decree. Accordingly, land bearing these three Khasra numbers was ordered to be released from attachment but the remaining land of the judgment‑debior which was under attachment was held to be liable to be sold in execution of the decree against him. The judgment‑debtor was found to be Rajput Bhatti by caste. The judgment‑debtor preferred an appeal against the order of the executing Court which was dismissed by Khan Salah‑ud‑Din Hanif, District Judge, Rawalpindi, on the 16th of January 1962.

2. Before me, on behalf of the judgment‑debtor, it has been reagitated that the house in question as well as the remaining land under attachment are not liable to be attached and sold in execution of the decree obtained by the respondent against him. Ha As regards the house, the findings of the learned District Judge Na are that the decree‑holder applied for attachment of the entire house, and since, the appellant has only a share in it, he cannot object against the attachment, that no law was cited before him under which a share in the joint house can be exempted from attachment and sale. The learned counsel for the judgment debtor relies on the provisions of the West Pakistan Relief of Indebtedness Ordinance (XV of 1960), before me and urges that the learned appellate Court has altogether failed to apply them to the case. Section 2(c) of this Ordinance defines a "debtor" to mean a person who owns a debt and who both earns his livelihood mainly by agriculture and is either a land‑owner or tenant of agricultural land, and the finding of the trial Court is to the effect that the judgment‑debtor was not a "debtor" in terms of this provision and consequently he cannot avail of the protection given to a "debtor" under section 7 thereof. The learned District Judge, however, failed to record any specific finding about this part of the case. Accordingly, I have myself gone into the evidence recorded by the trial Court which has been read before me. On behalf of the judgment‑debtor Ghulam Rasul Patwari of the estate of Rawalpindi has appeared as J. D. W.

1. He has deposed that the judgment‑debtor has his residence in the estate and that he is Rajput Bhatti by caste and that he owns village immovable property there. In his cross‑examination, the witness has stated that the judgment‑debtor and his mother sold away about 60 to 70 Ihatas on which different people had constructed their houses and that some of the lands belonging to the judgment‑debtor were on lease with the military and on them certain barracks have also been constructed. The witness goes on to depose that the judgment‑debtor is not cultivating the land himself and that his lands are being cultivated through tenants. The next witness is the judgment‑debtor himself who has appeared as J. D. W.

2. He has stated that he is a Zamindar Rajput Bhatti by caste and that his land under attachment is under cultivation. According to him the house under attachment is his residential house and that he was not the owner of any other house. In his cross‑examination he has deposed that some of his lands are on lease with the military and has denied that the lower portion of the house under attachment was occupied by tenants. He has further deposed that he is not cultivating the lands himself but his servant Nur Muhammad was cultivating them, and that he did not know if the land was within the municipal limits. On behalf of the decree‑holder four witnesses were examined. It is unnecessary for me to expand on their statements. Suffice it to say that there is nothing in the statement of the witnesses of the judgment debtor or those of the decree‑holder to prove that the judgment debtor earns his livelihood mainly by agriculture. He may be a land‑owner in the estate but that alone is not sufficient. In view' of this, it is difficult to hold that the appellant is a "debtor" within the meaning of the term used in section 2(c) of the Ordinance (XV of 1960). Accordingly, the judgment‑debtor is not entitled to the protection afforded by section 7 of the said Ordinance. That section lays down that notwithstanding anything contained in the Code of Civil Procedure, 1908, the houses and other buildings belonging to a "debtor" shall not be liable to attachment or sale in execution of any decree, if they are not proved by the decree‑holder to have been let out on rent. The appellant has failed to prove that he is a "debtor" as defined in the Ordinance and as such his house is not exempt from attachment and sale under the provisions of the Ordinance. In view of these conclusions it is wholly unnecessary for me to go into the further question as to whether the house in dispute was let out to tenants or not.

3. During the course of the arguments the learned counsel for the appellant attempted to place his reliance on the provisions of section 60 (1) (c) of the Code of Civil Procedure. 1908 in the alternative. The learned counsel has urged before me that the house and other buildings belonging to an "agriculturist" and occupied by him are exempt from attachment under the Code. According to him, the appellant has been proved beyond any manner of doubt to be a Rajput Bhatti by caste which is predominantly an agricultural tribe and as‑ such the appellant is an "agriculturist" within the meaning of section 60 of the Code of Civil Procedure, 1908. The term "agriculturist" has been used in clauses (b) and (c) of the proviso to section 60 (1) of the Code and .in my opinion it carries the same meanings at both the places in, that context. The said proviso along with the two clauses is reproduced hereunder: --‑ "60 (1) Provided that the following particulars shall not be liable to such attachment or sale namely :‑ (a) . . . . . . . . . . . , (b) tools of artisans, and, where the, judgment‑debtor is an agriculturist, his implement,; of husbandry and such cattle and seed‑grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section; (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; Under clause (b) above, implements of husbandry, cattle and seed‑grain of an agriculturist as may be necessary to enable him to earn his livelihood as such are exempt from attachment. It further provides that a 'portion of his agricultural produce which may be necessary for the purpose of providing until the next harvest for due cultivation of the land and for subsistence of his E family and which may be declared by the Government under section 61 of the Code is exempt from liability to attachment or sale in execution of a decree. In the above context there is no room for doubt that the term "agriculturist" within the scope of this clause has been used in a restricted sense. It does not include) a person who may be said to be agriculturist merely by reason of his caste. On the contrary it connotes a person who is an agriculturist by profession and is dependent on agriculture for his source of livelihood, one who earns his living from agriculture, a cultivator of the soil. The term "agriculturist" used in clause (c) above does not have a different meaning at all. Whereas under clause (b) the implements of husbandry, etc. are made) immune from attachment, under clause (c) the house belonging to and occupied by him is also exempted.

4. In Sant Ram v. Buta Khan (A I R 1938 Lah. 72) it was held that the term "agriculturist" used in section 60 must be strictly construed. It denotes a husbandman and a person who carries on and makes his living by tillage and not a mere owner of land. Balwant Singh v. Anjaman Jmdad Bahami Qarza and another (A I R 1939 Lah. 40) is also to the effect. Nihal Singh v. Siri Ram and others (A I R 1939 Lah.388) is a Full Bench decision wherein it has been laid down that the term "agriculturist" used in clause (c) means a person who personally engages himself in the tilling of the soil and whose livelihood depends upon the proceeds derived from that tilling of the soil. The true test is to see whether a man personally engages in tilling and whether this occupation is essential to his maintenance In Shrimant Appasabeb Tuliaram Desai and others v. Bhalchandra Vithalrao Thube (AIR 1961 S C 589) it was observed 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. It was further held in that judgment that "where a person is an agriculturist in the widest sense of the term, he is not an agriculturist within the meaning of the clauses (section 60, clauses (b) and (c)), if he is not really dependent for his maintenance on tilling the soil and is able to maintain himself otherwise." In the present case, there is no evidence on the record to show that the judgment‑debtor (appellant) is really dependent for his maintenance on the income of the soil, and is unable to maintain himself otherwise. The mere fact that he belongs to Rajput Bhatti tribe and owns some land and arranges its cultivation through tenants or servants is not at all sufficient to hold that he is an "agriculturist". He has failed to prove that he is living on agriculture for his maintenance. It is not proved that the appellant is an "agriculturist" within the meaning of section 60 of the Code of Civil Procedure and consequently he cannot avail of the pretection afforded to the agriculturists under that section. Accordingly, I hold that the house in dispute is not exempt from attachment and sale in execution of the decree obtained by the respondent.

5. As regards the remaining land in dispute, I do not think the judgment‑debtor has got any case. The trial Court has already released the land comprised in Khasra Nos. 6745/3969, 3970/2073 and 3560/2019 situated in the estate of Rawalpindi, from attachment. As regards the rest of the land under attach ment belonging to the judgment‑debtor, his objections were dismissed by the executing Court. The Court found that his remain ing property does not fall within the definition of the term land as used in the Punjab Alienation of Land Act (XIII of 1900). The lower appellate Court has concurred with this finding of fact and I have no reason to differ from it. A reference to Exh. J D. I which is a Khasra Girdawari in the case will show that apart from the aforesaid three Khasra Numbers, the remaining land in dispute is shown to be under Ghair Mumkin Abadi and Ihata Ghair Mumkin. According the evidence on the record, some of these lands are with the military who have even constructed their barracks on it. Section 2 (3) of the Punjab Alienation of Land Act (XIII of 1900) defines the term "land" to mean land which is not occupied as a site of any building in a town or village and is occupied or let for agricultural purposes or for purpose sub‑servant to agriculture. There is nothing to show that this property has been let or occupied for the agricultural purpose or for purposes subservient to agriculture. Accordingly, section 16 of the Act which affords a protection against the sale of the "land" belonging to members of an agricultural tribe cannot be invoked by the appellant.

6. In view of the above discussion, this appeal has no merit in it and is hereby dismissed with costs. K. B. A. Appeal dismissed.