RSA No.1081 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1081 of 2009 (O&M) Date of Decision: 5.2.2010 Sukhdev Kumar ..Appellant. Vs. Punjab National Bank and another ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.H.S.Sirohi, Advocate for the appellant. Mr.H.R.Bansal, Advocate for respondent No.1. Mr.M.S.Dhammi, Advocate for respondent No.2. Rakesh Kumar Jain, J. The plaintiff is in second appeal against the judgment and decree of the trial Court passed by Additional Civil Judge (Sr.Divn.) Balachaur dated 6.12.2006 which has been upheld by the first Appellate Court vide its judgment and decree passed by the Additional District Judge, Nawan Shahar dated 1.8.2008. Briefly put, case of the plaintiff is that on 27.10.1999 his land measuring 2 kanals comprising in Khata No.172/204, Khasra No.28//24/5 (2-0) situated at village Fatehpur, Tehsil Balachaur, District Nawan Shahar mortgaged with the Punjab National Bank (defendant No.1) was auctioned by the Bank for recovery of loan amount of Rs.1,00,165/-, in favour of Sukhdev son of Lakpat (defendant No.3), for a sum of Rs.94,000/- though the property was valued at Rs.45 lacs. The auction was behind the back of the plaintiff, of the suit property, in which he is residing. It is alleged that he RSA No.1081 of 2009 -2- had set up a poultry farm on the land in question having an electricity connection bearing meter No.RB No./1108. The defendant No.3 moved an application to defendant No.2 (SDM, Balachaur) for delivery of possession of suit property and also threatened the plaintiff of his dispossession, therefore, the plaintiff filed a suit for declaration that he being the owner of the suit property measuring 2 kanals, challenged the auction dated 27.10.1999 by defendant No.1 in favour of defendant No.3 and sought permanent injunction restraining the defendants from interfering in his peaceful possession. After the notice was issued in the suit, vide order dated 3.8.2005, suit against defendant No.2 was got dismissed as withdrawn. However, the suit was contested by both defendants No.1 and 3 by filing their separate written statements. Besides taking the technical objections in the preliminary objections, on merits, both defendants No.1 and 3 almost took similar objections to the effect that the plaintiff had taken loan from defendant No.1 for the purpose of running a poultry farm over the suit land by mortgaging the land in question with defendant No.1. As the plaintiff failed to make the payment of loan along with interest, the land mortgaged with the Bank was auctioned by defendant No.2 under the Punjab Agricultural Credit Operations and Miscellaneous Provisions (Banks) Act, 1978 (for short `the Act'). The Bank ordered the auction on 3.8.1999, which was conducted on 27.10.1999, in which defendant No.3 was the highest bidder. The plaintiff filed Objections against the auction before defendant No.2 which was dismissed on 10.2.2000 against which plaintiff filed an appeal under the Act before the Deputy Commissioner, Nawan Shahar which was also dismissed on 8.6.2000, thereafter, no further appeal was RSA No.1081 of 2009 -3- filed and the order of the Deputy Commissioner, Nawan Shahar and Collector became final. It is also alleged that Dakhal Malkana (possession of ownership) was given to defendant No.3 being the auction purchaser but physical possession was not delivered, therefore, defendant No.3 moved an application to defendant No.2 under the Act for delivery of possession on which Tehsildar Balachaur has already been directed to put defendant No.3 into physical possession of the suit property. It was also alleged by the Bank (defendant No.1) that auction was conducted in accordance with law and after deducting the due amount, a sum of Rs.2790/- was returned to the plaintiff by Tehsildar Balachaur out of the sale proceeds which was encashed by the plaintiff. The plaintiff filed replications against both the written statements in which the averments made in the plaint were reiterated and that of the written statement were denied. On the pleadings of the parties, following issues were framed : (i)Whether the plaintiff is entitled to the declaration to the effect that he is owner of the land/property in dispute? OPP. (ii)Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP. (iii)Whether the suit of the plaintiff is in time? OPP. (iv)Whether this Court has got no jurisdiction to try this suit? OPD. (v)Whether the suit is not maintainable in the present form? OPD. (vi)Whether the suit is bad for non service of notice under Section 80 CPC? OPD/1. (vii) Whether the plaintiff has not approached this Court with clean hands and is guilty of suppressing true and material RSA No.1081 of 2009 -4- facts from the Court? OPD. (viii)Whether the suit is not property valued for any purpose? OPD. (ix)Relief. To substantiate his case, the plaintiff examined himself as PW1 and tendered into evidence some documents whereas contesting defendants did not lead any evidence. The learned trial Court decided issues No.1 to 3 against the plaintiff whereas issues No.4,5,6,7 and 8 were not pressed. Both the Courts below have concurrently found that the plaintiff had obtained a loan of Rs.33,000/- from defendant No.1 for the purpose of constructing poultry farm over the land measuring 2 kanals which was mortgaged with the Bank. Defendant No.1 filed a recovery certificate of Rs.1,00,165/- against which the plaintiff had deposited Rs.20,000/- but a sum of Rs.91,210/- remained due which was not deposited because of which the auction of the property was conducted on 27.10.1999 in which defendant No.3 was the highest bidder and after realising the amount due to the Bank out of the auction proceeds, the balance amount of Rs.2790/- was returned to the plaintiff by way of cheque which has been encashed by him without any objection. Both the Courts have also found that the plaintiff had filed Objection against the auction to defendant No.2 which was dismissed by him against which he had filed an appeal which was dismissed by the Deputy Commissioner, Nawan Shahar and no further appeal was filed as a result of which those orders became final between the parties. On these concurrent findings of fact, both the Courts have dismissed the suit of the plaintiff. Still aggrieved, the plaintiff has come up in second appeal in RSA No.1081 of 2009 -5- which basically it has been argued that as per Section 8(2) of the Act every order passed by the prescribed Authority under Section 8(1) of the Act shall be deemed to be decree of the Civil Court and as per Section 60(1)(c) of the Code of Civil Procedure, 1908 (for short `CPC') houses and land immediately appurtenant thereto belonging to an agriculturist shall not liable to be attached, therefore, the house of the appellant could not have been sold by defendant No.2. Notice of motion was issued in this case on 17.8.2009 on the aforesaid contentions after which status quo was also ordered to be maintained by this Court vide order dated 8.10.2009 till the next date of hearing which was not extended thereafter. Learned counsel for the appellant though, has framed various questions of law in the memo of appeal but before this Court, he had argued only question No.2(i) mentioned in ground No.16 of the memo of appeal. It is submitted by him that if the order of the Prescribed Authority under Section 8(i) of the Act is deemed to be a decree of Civil Court, the said cannot be executed for the purpose of realising the amount due to the Bank by putting his house and the land immediately appurtenant thereto by way of sale as it is prohibited under Section 60(1)(c) of CPC. In answer to this argument, learned counsel appearing for respondent No.1 has vehemently argued that provisions of Section 60(1)(c) of CPC are not applicable to the facts and circumstances of the present case because firstly, the property mortgaged with the Bank was a vacant land with a small shed, secondly, the plaintiff has not proved himself to be an agriculturist, labourer or domestic servant and finally, the order passed by RSA No.1081 of 2009 -6- defendant No.2 which has been challenged before this Court, has been upheld by the Deputy Commissioner, Nawan Shahar and the same has not been challenged by the plaintiff in the civil suit. I have heard learned counsel for the parties and have perused the record with their assistance. Though the argument raised by the learned counsel for the plaintiff/appellant is attractive on the face of it but does not help him at all. Before appreciating the arguments raised by both the learned counsel for the parties, it would be relevant to refer to the provisions of Section 60(1)(c) of CPC, which is reproduced as under: “The following property is liable to attachment and sale in execution of a decree, namely, lands, houses, or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and save as here-inafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf: Provided that the following particulars shall not be liable to such attachment or sale, namely:- (a) xxxxx....... (b) xxxxx...... (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 or a labourer or a domestic servant] and occupied by him; RSA No.1081 of 2009 -7- The reading of the aforesaid provisions of law provides the property which are liable to attachment and sale in the execution of decree with certain exceptions in which 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, labourer and occupied by them is exempted. The appellant has claimed himself to be an agriculturist. Explanation V in Section 60 of CPC provides that “for the purpose of this proviso, the expression “agriculturist” means a person, who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner or agricultural labourer. Explanation (vi) further provides that “For the purposes of Explanation V, an agriculturist shall be deemed to cultivate land personally, if he cultivates land (a) by his own labour, or (b) by the labour of any member of his family, or (c) by servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both Thus, the person who claims an exemption under Section 60(1) (c) of CPC as an agriculturist has to plead and prove various facts within the definition of “agriculturist” that his livelihood is mainly on the income of agriculture land whether as owner, labourer, partner or agricultural labourer and if he alleges that he cultivates land personally then he has to prove that he cultivates the land by his own labour, by the labour of any member of his family or by servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both. These are all questions of facts which are to be pleaded before the Courts below and proved in accordance RSA No.1081 of 2009 -8- with the provision of Indian Evidence Act, 1872. Thus, in my view, for one of these reasons that the plaintiff cannot take this plea of seeking exemption under Section 60(1)(c) of CPC as he has not proved as a matter of fact that he is an agriculturist as provided under the Explanations of Section 60(1)(c) of CPC. Secondly, it has been found by the Courts below that there was no house when the plaintiff had taken loan and mortgaged the property in dispute. The loan was sought and obtained for the purpose of constructing a shed over the land in question for running a poultry farm. In case any residential house, as alleged by the plaintiff, was constructed during the pendency of the proceedings or even after the property was mortgaged with the Bank, without permission of the Bank, then it cannot be protected under the exemption Clause. Moreover, the plaintiff had filed his objections against the order of defendant No.2 which was dismissed by him against which an appeal was preferred by him to the Deputy Commissioner, Nawan Shahar which was again dismissed by him but no further appeal was filed and ultimately, the said order became final. In these circumstances, the plaintiff has no right to challenge the auction proceedings by way of filing a suit for declaration which has been filed in order to thwart the right of defendant No.3 insofar as the possession of the property is concerned. Hence, viewed from any any angle, I do not find any merit in the present appeal as no substantial question is involved and the same is hereby dismissed though without any order as to costs. RSA No.1081 of 2009 -9- (Rakesh Kumar Jain) 5.2.2010 Judge Meenu