HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.2765 OF 1992 JUDGMENT: The defendant in O.S.No.52 of 1988 on the file of Additional District Judge, Hindupur, is the appellant herein. The suit was one filed for recovery of a sum of Rs.20,385/-. 2. The allegations in the plaint go to show that the defendant has borrowed a sum of Rs.6,000/- on 27.01.1986 from the plaintiff for his necessities and executed a promissory note on the same day. He also borrowed a sum of Rs.10,000/- on 10.08.1986 from the wife of the plaintiff and executed a promissory note. On 08.05.1988 the plaintiff paid a sum of Rs.12,000/- to his wife and obtained a transfer of the promissory note for consideration. In spite of repeated demands, the defendant being a Village Sarpanch and also a contractor and having vast agricultural lands did not pay the money. He is not entitled for the benefits of Act 7 of 1977 or Act 45 of 1988. 3. The defendant filed a written statement contending that the promissory note, dated 10.08.1986 is true and it was borrowed for agricultural purpose. The promissory note, dated 27.01.1986 is not true. The alleged transfer in favour of the plaintiff is not true. The defendant has no contract works. He is a small farmer entitled to the benefits of the Act 7 of 1977 and 45 of 1987. Accordingly, he pleaded for dismissal of the suit. 4. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the suit A marked pronote dated 27.01.1986 is true, valid and binding on the defendant? 2) Whether the defendant is a small farmer as per Act 7/77 and Act 45/87, if so, that the defendant’s debt is deemed to have been discharged? 3) To what relief? 5. On behalf of the plaintiff, PWs.1 to 3 were examined and marked Exs.A.1 to A.9. On behalf of the defendant, DWs.1 to 4 were examined but no documents were marked. After considering the evidence on record, the learned Additional District Judge decreed the suit of the plaintiff as prayed for. Aggrieved by the said judgment and decree, the present appeal is filed. 6. The points that arise for consideration are: 1) Whether the defendant is not liable to pay the suit debt under the promissory note dated 27.01.1986? 2) Whether the defendant is a small farmer and not liable to pay the decretal debt? 7. POINTS: There is no dispute about the fact that the promissory note dated 10.08.1986 was admittedly executed by the defendant and the plaintiff claims to have obtained the same by transfer for consideration. Even after it is not a transfer for consideration, it is a transfer for authorising him to collect the money. So far as the promissory note Ex.A.1 for Rs.6,000/- is concerned, there is not of much cross-examination to deny the genuineness of the promissory note Ex.A.1. PW.2 is the attestor on the promissory note Ex.A.1 and he stated that the defendant borrowed Rs.6,000/- and executed the promissory note. There is no need for him to fabricate the promissory note. Evidently, from the own pleading of the defendant, he is in the habit of borrowing money from the plaintiff and therefore, there is no need for the plaintiff to fabricate the document Ex.A.1, which was proved by the evidence of PW.2. 8. The learned counsel for the appellant contends that the appellant is a small farmer and he was not doing any contract works and he holds less than the ceiling area. Therefore, the debt shall be deemed to have been discharged. Reliance is placed on a decision reported in Dasam Chinna Pappayya Raju Vs. Sripada Ramachandra Prabhakara Rao[1], where-under in order to determine the status of the small farmer, the land, which he holds and cultivates personally, has to be taken into consideration. If the debt is owned by joint family, it has to be split up into different units. 9. Evidently, whether a person is a small farmer or not is a question of fact and it has to be pleaded and proved. In the written statement, there is no information as to what was the extent held by the family and as to the partition if any between the family members and extent of the property got by the defendant in such a partition. Therefore, the absence of a plea disentitles consideration of any amount of evidence. Even otherwise his evidence does not show as to what was the total extent of the land owned and possessed by him and his brothers. According to him, he has got only Acs.4.30 cents of dry land and they are five brothers. About 15 years back a partition is said to have taken place and he claims to have got 1/4th share out of Acs.7.70 cents in Sy.Nos.60/2 and 60/3 and 1/4th share out of Acs.9.00 cents in Sy.No.12/1. He also admitted that he has got land in Utukuru village to an extent of Acs.17.21 cents and he has got three sons and three daughters and his two sons are divided and the daughters are not married. He claims that he has got only Acs.4.31 cents, which is at Utukuru village. He himself has not filed any documents to prove the above facts. Though he claims that his other two sons have divided, he has not placed any material before the Court. He claims that he has no share in some of the joint family properties and the reason for not having such a share is not forthcoming. He denied the suggestion that he has got Acs.25.00 cents of dry land and Acs.4.00 cents of wet land. Therefore, when the material on record clearly goes to show that the family has owned extensive property, it is for the defendant to prove that as to why he got lesser share in the property. The evidence of DW.2 is of no use since he only spoke about the date of birth of his son as 03.05.1969. The evidence of DW.3 shows that the defendant is the Sarpanch of the village and the defendant has got four or five acres of land to his share and that share is enjoyed by his sons. His evidence does not disclose whether there was any partition between the brothers. According to him, the father of the defendant has got about 31 acres of dry land and about Acs.7.00 cents of wet land. All these facts clearly go to show that the defendant has got extensive properties and further-more, there is a stone quarry and quarrying activity was being done by their family. 10. Therefore, in view of the above circumstances, it has to be held that the defendant failed to prove that he is a small farmer and the lower Court has rightly rejected the claim and there are no grounds to interfere with the Judgment and decree of the lower Court. In the result, the appeal is dismissed with costs. _________________________ N.R.L. NAGESWARA RAO, J Date:23.08.2011 INL [1] 1981(2) ALT 441 (F.B.)